Social Welfare (Miscellaneous Provisions) Act 2004

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Definitions.

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

‘act’ includes a deliberate omission;

‘the Act of 1946’ means the Industrial Relations Act 1946 ;

‘agency worker’ means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;

‘complainant’ has the meaning assigned to it by section 81E(4);

‘contract of employment’ means, subject to subsection (2)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with a person carrying on the business of an employment agency, within the meaning of the Employment Agency Act 1971 , to do or perform personally any work or service for another person (whether or not that other person is a party to the contract), whether the contract is express or implied and, if express, whether it is oral or in writing;

‘the Director’ means the Director of Equality Investigations;

‘disability’ means—

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

‘discrimination’ includes the issue of an instruction to discriminate;

‘the discriminatory grounds’ has the meaning assigned to it by section 66(2);

‘dismissal’ includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and ‘dismissed’ shall be construed accordingly;

‘employee’, subject to subsection (2), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or a former member of a regulatory body;

‘employer’, subject to subsection (2), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

‘employment agency’ means a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers;

‘family status’ means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

‘indirect discrimination’ shall be construed in accordance with section 68;

‘marital status’ means single, married, separated, divorced or widowed;

‘member’ means any person who, having been admitted to membership under the rules of a scheme, remains entitled to any benefit under such scheme in respect of a period of membership whilst employed or self-employed within the State;

‘occupational benefit scheme’ means—

(a) in relation to self-employed persons, any occupational pension scheme or arrangement which is comprised in one or more instruments or agreements and which provides, or is capable of providing, occupational benefits in relation to self-employed persons in any description of self-employment within the State, but does not include—

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

(ii) any scheme for a self-employed person which has only one member, or

(iii) any scheme in so far as benefits are financed by contributions paid by the members on a voluntary basis,

or

(b) in relation to employed persons, any occupational pension scheme or arrangement which is comprised in one or more instruments or agreements and which provides, or is capable of providing, occupational benefits in relation to employed persons in any description of employment within the State, but does not include—

(i) any insurance contract made by or on behalf of an employed person to which the employer is not a party, or

(ii) any scheme in so far as benefits are financed by contributions paid by the members on a voluntary basis;

‘occupational benefits’ means benefits (other than remuneration to which sections 19 and 29 of the Employment Equality Act 1998 apply), in the form of pensions, 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 Act 1994 or the Health Acts 1947 to 2001 which is payable to or in respect of the member as a consequence of his employment;

‘proceedings’ means—

(a) proceedings before the person, body or court dealing with a request or reference under this Part by or on behalf of a person, and

(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference,

but does not include proceedings for an offence under this Part;

‘qualifying service’, in relation to a member of a scheme, means the aggregate of every period of reckonable service, whether or not continuous in each case, under—

(a) the scheme,

(b) every other scheme relating to the same employment,

(c) every other scheme relating to any other employment in respect of which rights to long service benefit have been granted under the scheme in substitution for accrued rights under such other scheme:

Provided that no such period, or part thereof, shall be counted more than once;

‘regulatory body’ means a body which—

(a) is an organisation of workers or employers,

(b) is a professional or trade organisation, or

(c) controls entry to, or the carrying on of, a profession, vocation or occupation;

‘religious belief’ includes religious background or outlook;

‘respondent’ has the meaning assigned to it by section 81E(4);

‘rule’, in relation to a scheme, means a provision of a scheme, by whatever name it is called;

‘scheme’ means an occupational benefit scheme;

‘sexual orientation’ means heterosexual, homosexual or bisexual orientation;

‘Traveller community’ means the community of people commonly so called who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the Island of Ireland;

‘victimisation’ shall be construed in accordance with subsection (3).

(2) For the purposes of this Part—

(a) a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act 1956 , shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service,

(b) an employee, officer or servant of a local authority for the purposes of the Local Government Act 2001 , a harbour authority, a health board or a vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be, under a contract of service, and

(c) in the case of a contract mentioned in paragraph (b) of the definition of contract of employment in subsection (1), no person except another agency worker may be regarded as being in a comparable situation for the purposes of section 66.

(3) For the purposes of this Part, victimisation occurs where the dismissal or other adverse treatment of an employee by his employer occurs as a reaction to—

(a) the employee notifying the Director or the Board of an alleged breach of this Part,

(b) a complaint of a breach of the principle of equal pension treatment made by the employee to the employer,

(c) any proceedings by a complainant,

(d) an employee having represented or otherwise supported a complainant,

(e) the work of an employee having been compared with that of another employee for any of the purposes of this Part,

(f) an employee having been a witness in any proceedings under this Part,

(g) an employee having opposed by lawful means an act which is unlawful under this Part, or

(h) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Discriminatory grounds for the purposes of this Part.

66.—(1) For the purposes of this Part, discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds mentioned in subsection (2) (in this Part referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another natural person (‘the other person’)—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of the other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Part) are—

(a)  (i) that one is a woman and the other is a man, or

(ii) that one is a woman and the other is a man and they have the same marital status or both have family status,

(in this Part referred to as ‘the gender ground’),

(b) that they are of different marital status (in this Part referred to as ‘the marital status ground’),

(c) that one has family status and the other does not (in this Part referred to as ‘the family status ground’),

(d) that they are of different sexual orientation (in this Part referred to as ‘the sexual orientation ground’),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Part referred to as ‘the religion ground’),

(f) that, subject to subsection (3), they are of different ages (in this Part referred to as ‘the age ground’),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Part referred to as ‘the disability ground’),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Part referred to as ‘the ground of race’),

(i) that one is a member of the Traveller community and the other is not (in this Part referred to as ‘the Traveller community ground’).

(3) The age ground applies only in relation to a person who is above the maximum age in respect of which there is a requirement under any enactment that he attend school.

Categories of persons to whom this Part applies.

67.—(1) For the purposes of this Part, ‘X’ and ‘Y’ represent 2 persons who differ as follows:

(a) in relation to the gender ground, X and Y are of different gender;

(b) in relation to the marital status ground, X and Y have different marital status;

(c) in relation to the family status ground, X has family status and Y does not, or vice versa;

(d) in relation to the sexual orientation ground, X and Y are of different sexual orientations;

(e) in relation to the religion ground, X and Y have different religious beliefs or X has a religious belief and Y does not, or vice versa;

(f) in relation to the age ground, X and Y are of different ages;

(g) in relation to the disability ground, X is a person with a disability and Y is not, or vice versa, or X and Y are persons with different disabilities;

(h) in relation to the ground of race, X and Y differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;

(i) in relation to the Traveller community ground, X is a member of the Traveller community and Y is not, or vice versa.

(2) Subject to subsection (1), nothing in this Part affects the operation of the Interpretation Acts 1937 to 1997 in so far as they provide that, unless the contrary intention appears—

(a) words importing the masculine gender shall be construed as also importing the feminine gender, and

(b) words importing the feminine gender shall be construed as also importing the masculine gender.

(3) In this Part, any reference to X and Y which does not apply to a specific discriminatory ground shall be treated as a reference to X and

Y in the context of each of the discriminatory grounds considered separately.

Indirect discrimination for the purposes of this Part.

68.—(1) For the purposes of this Part, indirect discrimination occurs where an apparently neutral rule of the scheme concerned puts persons (whether each of them is X or Y) who differ in a respect mentioned in section 66(2) at a particular disadvantage in respect of any of the discriminatory grounds compared with other persons, being members or prospective members of that scheme.

(2) Where indirect discrimination occurs, the rule of the scheme concerned shall be treated as being in breach of the principle of equal pension treatment in relation to the persons referred to in subsection (1) on the discriminatory ground in respect of which the disadvantage is claimed unless the rule is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(3) In any proceedings statistics are admissible for the purpose of determining whether indirect discrimination has occurred.

Obligation to comply with the principle of equal pension treatment.

69.—Subject to the provisions of this Part, every scheme shall comply with the principle of equal pension treatment.

Principle of equal pension treatment.

70.—(1) Subject to this Part, the principle of equal pension treatment is that there shall be no discrimination on any of the discriminatory grounds (including, subject to section 68(2), indirect discrimination) in respect of any rule of a scheme.

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

(3) Nothing in this Part shall prohibit a rule of a scheme which provides different occupational benefits to or in respect of different members on grounds which do not breach the principle of equal pension treatment.

Savings in relation to the gender ground.

71.—(1) In determining whether a rule of a scheme complies with the principle of equal pension treatment in relation to the gender ground, account shall not be taken of—

(a) any difference, on the basis of the sex of the members, in the levels of contributions which the employer makes, to the extent that the difference is for the purposes of—

(i) removing or limiting differences, as between men and women in the amount or value of benefits provided under a defined contribution scheme, or

(ii) ensuring the adequacy of the funds necessary to cover the cost of the benefits defined under a defined benefit scheme,

(b) any difference, on the basis of the sex of members in the amount or value of—

(i) benefits provided under a defined contribution scheme to the extent that the difference is justifiable on actuarial grounds, or

(ii) certain elements of benefits provided under a defined benefit scheme, to the extent that the difference results from the effects of the use of actuarial factors differing according to sex at the time when the funding of such scheme is implemented, such as—

(I) the conversion into a capital sum of part of a periodic pension,

(II) transfer of occupational benefits,

(III) a reversionary pension payable to a dependant in return for the surrender of part of a pension, or

(IV) a reduced pension where the employee opts to take early retirement,

(c) any special treatment for the benefit of women to whom section 81A(1) relates,

(d) any difference of treatment for self-employed persons in relation to any optional provisions available,

(e) any difference of treatment in relation to additional benefits available,

(f) any right to claim a flexible pensionable age provided the conditions are the same for men and women.

(2) In this section—

‘additional benefits 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 benefits in addition to those otherwise provided under such scheme;

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

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

Savings in relation to the age, family and marital status grounds.

72.—(1) It shall not constitute a breach of the principle of equal pension treatment on the age ground for a scheme to—

(a) fix age or qualifying service, or a combination of both, as a condition or criterion for admission to the scheme,

(b) fix different ages or qualifying service, or a combination of both, as conditions or criteria for admission to the scheme for employees or groups or categories of employees,

(c) fix age or qualifying service, or a combination of both, as a condition or criterion for entitlement to benefits under the scheme,

(d) fix different ages or qualifying service, or a combination of both, as conditions or criteria for entitlement to benefits under the scheme for employees or groups or categories of employees,

(e) (i) fix age or qualifying service, or a combination of both, as a condition or criterion in relation to the accrual of rights under a defined benefit scheme or in relation to the level of contributions to a defined contribution scheme, or

(ii) fix different ages or qualifying service, or a combination of both, as conditions or criteria in relation to the accrual of rights under a defined benefit scheme or in relation to the level of contributions to a defined contribution scheme for employees or groups or categories of employees,

where, in the context of the relevant employment, to do so is appropriate and necessary by reference to a legitimate objective of the employer, including legitimate employment policy, labour market and vocational training objectives,

(f) use criteria as to age in actuarial calculations:

Provided that this does not result in a breach of the principle of equal pension treatment on the gender ground.

(2) It shall not constitute a breach of the principle of equal pension treatment on the marital or family status ground for a scheme to provide more favourable occupational benefits where those more favourable benefits are in respect of any person in respect of whom, under the rules of the scheme, a benefit is payable on the death of the member, provided that this does not result in a breach of the said principle on the gender ground.

(3) It shall not constitute a breach of the principle of equal pension treatment on the marital status or sexual orientation ground to provide more favourable occupational benefits to a deceased member's widow or widower provided that it does not result in a breach of the said principle on the gender ground.

(4) In this section any reference to the fixing of age or ages for entitlement to benefits includes a reference to the fixing of retirement age or ages for entitlement to benefits.

Special provisions relating to the disability ground.

73.—(1) Nothing in this Part shall make it unlawful for a scheme to have rules which provide for differences of treatment in respect of a member with a disability for work of a particular description, if, by reason of that disability, the amount of work done by the member during a particular period is less than the amount of similar work done, or which could reasonably be expected to be done, during that period by a member without the disability, provided that it does not result in discrimination on the gender ground.

(2) Where, by virtue of subsection (1), X as a person with a disability is provided with different treatment, Y, as a person without a disability, or with a different disability, shall not be entitled under this Part to that treatment.

(3) Nothing in this Part shall make it unlawful for a scheme to have a rule which provides for more favourable occupational benefits to be paid to a member with a disability where that member avails himself of early retirement on the grounds of that disability.

Procuring, etc. discrimination or victimisation is an offence.

74.—A person who procures or attempts to procure another person to do anything which—

(a) constitutes a breach of the principle of equal pension treatment, or

(b) constitutes victimisation for the purposes of this Part,

shall be guilty of an offence.

Compliance with statutory requirements, etc.

75.—(1) Nothing in this Part renders unlawful any act done in compliance with any provision of the Maternity Protection Act 1994 or the Adoptive Leave Act 1995 and, accordingly, any such act does not constitute a breach of the principle of equal pension treatment on the marital status ground.

(2) Nothing in this Part renders unlawful any act done in compliance with any provision made by or under—

(a) section 5 of the Air Navigation and Transport Act 1946 ,

(b) section 12 of the Merchant Shipping Act 1947 ,

(c) section 29 of the Transport (Miscellaneous Provisions) Act 1971 ,

(d) section 3 of the Merchant Shipping (Certification of Seamen) Act 1979 , or

(e) section 5 of the Irish Aviation Authority Act 1993 ,

and, accordingly, any such act does not constitute a breach of the principle of equal pension treatment on the age ground or the disability ground.

(3) Nothing in this Part renders unlawful any act done in compliance with—

(a) the Protection of Young Persons (Employment) Act 1996 ,

(b) the National Minimum Wage Act 2000 , or

(c) section 3 of the Redundancy Payments Act 1971 , as amended by section 5 of the Redundancy Payments Act 1979 ,

and, accordingly, any such act does not constitute a breach of the principle of equal pension treatment on the age ground.

(4) Nothing in this Part renders unlawful any act done in compliance with paragraph 1 of Schedule 3 to the Redundancy Payments Act 1967 and, accordingly, any such act does not constitute a breach of the principle of equal pension treatment on the age ground.

Burden of proof.

76.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be reasonably inferred that there has been a breach of the principle of equal pension treatment in relation to him, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings as arising from a reference of a matter by the Board to the Director under section 85 (1) of the Employment Equality Act 1998 as it applies to this Part, facts are established by or on behalf of the Board from which it may be reasonably inferred that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘proceedings’ means proceedings under this Part.

Exclusion of discrimination on particular grounds in certain employments.

77.—In relation to the principle of equal pension treatment on the age ground or the disability ground, nothing in this Part applies in relation to employment in the Defence Forces.

Equal pension treatment and access.

78.—An employer shall comply with the principle of equal pension treatment in relation to the manner in which he affords his employees access to a scheme.

Benefits granted under a scheme at discretion of its management body.

79.—Where the granting of an occupational benefit under a scheme is at the discretion of any person, that person shall comply with the principle of equal pension treatment in the exercise of such discretion.

Non-compliance, compulsory levelling-up — gender.

80.—(1) Subject to subsection (5), where a rule of a scheme does not comply with the principle of equal pension treatment on the gender ground, it shall, to the extent that it does not so comply, be rendered null and void by the provisions of this Part with effect from—

(a) in the case of a rule that purports to have effect only on or after a date that falls on or after the commencement of section 22 of the Social Welfare (Miscellaneous Provisions) Act 2004, the date on and from which it purports to have effect,

(b) in the case of a rule that purports to have effect on and from a date that falls before that commencement (but not a date falling before the 8th day of April, 1976)—

(i) if the rule relates to employed persons, the date on and from which it purports to have effect, not being a date earlier than—

(I) subject to clause (II), the 17th day of May, 1990,

(II) the 8th day of April, 1976 in the case of employed persons who—

(A) initiated proceedings or made an equivalent claim before the 17th day of May, 1990, alleging that the scheme did not comply with the principle of equal pension treatment or was discriminatory as aforesaid, or

(B) were denied access to the scheme,

(ii) if the rule relates to self-employed persons, the date on and from which it purports to have effect, not being a date earlier than the 1st day of January, 1993, and the more favourable treatment accorded by it to X (or Y as the case may be) shall be accorded by it to Y (or X as the case may be) in respect of periods of membership in that scheme, or periods of denial of access to that scheme, up to the date on which the rule is amended to comply with the principle of equal pension treatment.

(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, subject to subsection (5), take such measures as are necessary to give effect to that subsection.

(3) Where any rule of a scheme relating to employed persons is rendered null and void by subsection (1), nothing in this Part shall preclude any rights or obligations, relating to a period of membership in that scheme before the 17th day of May, 1990, from remaining subject to the provisions of the scheme in force during that period of membership—

(a) during the period beginning on the 17th day of May, 1990 and ending on the 31st day of December, 1998, or, in the case of retirement ages, the 31st day of December, 2017, or

(b) in respect of members who cease to be in relevant employment to which that scheme applies before or during the period referred to in paragraph (a).

(4) Where any rule of a scheme relating to self-employed persons is rendered null and void by subsection (1), nothing in this Part shall preclude any rights or obligations, relating to a period of membership in that scheme before the 1st day of January, 1993, from remaining subject to the provisions of the scheme in force during that period of membership.

(5) Where a scheme to which a person has been denied access in contravention of this Part requires the payment of member contributions to it as a condition of membership, the admission of that person as a member of that scheme shall be conditional on the payment by the member of appropriate back contributions to the scheme from the beginning of the period in respect of which admission to the scheme is granted in accordance with this section.

(6) In this section ‘appropriate back contributions to the scheme’, in relation to a scheme, means—

(a) in a case where the rules of the scheme so provide, the amount of member contributions due for the period concerned at the appropriate contribution rate applying during that period calculated by reference to the salary applying at the time the contributions are being paid, or

(b) in any other case, the amount of contributions due, calculated in accordance with the rules of the scheme, from the beginning of the period in respect of which admission to the scheme is granted in accordance with this section.

Non-compliance, compulsory levelling-up — grounds other than the gender ground.

81.—(1) Subject to subsection (5), where a rule of a scheme does not comply with the principle of equal pension treatment on any ground other than the gender ground or the ground of race, it shall, to the extent that it does not so comply, be rendered null and void by the provisions of this Part with effect from the date on and from which it purports to have effect, not being a date earlier than the 2nd day of December, 2003 and the more favourable treatment accorded to X (or Y as the case may be) shall be accorded to Y (or X as the case may be) in respect of periods of membership in that scheme, or periods of denial of access to that scheme, up to the date on which the rule is amended to comply with the principle of equal pension treatment in respect of the relevant discriminatory grounds.

(2) Subject to subsection (5), where a rule of a scheme does not comply with the principle of equal pension treatment on the ground of race, it shall, to the extent that it does not so comply, be rendered null and void by the provisions of this Part with effect from the date on and from which it purports to have effect, not being a date earlier than the 19th day of July, 2003 and the more favourable treatment accorded to X (or Y as the case may be) shall be accorded to Y (or X as the case may be) in respect of the period of membership in that scheme, or periods of denial of access to that scheme, up to the date on which the rule is amended to comply with the principle of equal pension treatment in respect of the ground of race.

(3) Where more favourable treatment is accorded to any persons under a scheme by virtue of subsection (1) or (2), the trustees of the scheme or (where appropriate) the employer shall, subject to subsection (5), take such measures as are necessary to give effect to that subsection.

(4) Where any rule of a scheme is rendered null and void by subsection (1) or (2), nothing in this Part shall preclude any rights or obligations, relating to a period of membership in that scheme before the period in respect of which the rule is null and void, from remaining subject to the provisions of the scheme in force during that period of membership.

(5) Subsections (5) and (6) of section 80 shall apply in relation to this section as they apply in relation to section 80.

Maternity provisions.

81A.—(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 a scheme contains a rule—

(a) which relates to continuing membership of, or the accrual of rights under, the scheme during any period of qualifying 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 the 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 in respect of a period which includes a period of qualifying 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 pension treatment.

(3) Where a scheme is regarded as not complying with the principle of equal pension 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 qualifying maternity absence’ means any period—

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

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

(5) This section is without prejudice to rights conferred by the Maternity Protection Act 1994 and, in particular, section 22 of that Act.

Family leave provisions.

81B.—(1) Where a scheme contains a rule—

(a) which relates to continuing membership of, or the accrual of rights under, the scheme during any period of qualifying 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 was 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 in respect of a period which includes a period of qualifying family leave, to be determined other than it would be so 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 pension treatment.

(2) Where a scheme is regarded as not complying with the principle of equal pension 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 qualifying family leave’ means any period—

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

(b) in respect of which the employer pays him any remuneration.

Principle of equal pension treatment and collective agreements, etc.

81C.—(1) Subject to subsection (3)—

(a) if a rule or term of an agreement or order to which this section applies would not, if it were a rule of a scheme, comply with the principle of equal pension treatment on the gender ground, it shall, to the extent that it would not so comply, be rendered null and void and the provisions of section 80(1), (2), (5) and (6) shall apply to that rule or term as they apply to a rule of a scheme in respect of employees,

(b) if a rule or a term of an agreement or order to which this section applies would not, if it were the rule of a scheme, comply with the principle of equal pension treatment on any ground other than the gender ground, it shall, to the extent that it would not so comply, be rendered null and void and the provisions of section 81(1), (2), (3) and (5) shall apply to that rule or term as they apply to a rule of a scheme in respect of employees.

(2) This section applies to—

(a) a collective agreement relating to employees,

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

(c) a registered employment agreement within the meaning of Part III of that Act.

(3) Where any rule or term of an agreement or order is rendered null and void by subsection (1)(a), nothing in this Part shall affect any rights accrued or obligations incurred under that rule or term relating to the period before the 17th day of May, 1990—

(a) during the period beginning on the 17th day of May, 1990, and ending on the 31st day of December, 1998, or, in the case of retirement ages, the 31st day of December, 2017, or

(b) in respect of employees who cease to be in employment to which that rule or term applies before or during the period referred to in section 80(1).

(4) Where any rule or term of an agreement or order is rendered null and void by subsection (1)(b), nothing in this Part shall affect any rights accrued or obligations incurred under that rule or term before the period in respect of which the rule is null and void.

Principle of equal pension treatment and contracts of employment.

81D.—(1) Where a contract of employment contains a term (whether expressed or implied) which, if it were a rule of a scheme, would not comply with the principle of equal pension treatment on the gender ground, the term shall, to the extent that it would not so comply, be rendered null and void and the provisions of section 80 shall apply to that term as they apply to a rule of a scheme in respect of employees.

(2) Where a contract of employment contains a term (whether expressed or implied) which, if it were a rule of a scheme, would not comply with the principle of equal pension treatment on any of the discriminatory grounds other than the gender ground, the term shall, to the extent that it would not so comply, be rendered null and void and the provisions of section 81 shall apply to that term as they apply to a rule of a scheme in respect of employees.

(3) Where more favourable treatment is accorded to any person under a term (whether expressed or implied) of a contract of employment by virtue of subsection (1) or (2) and section 80 or 81 as applied by that subsection, the employer shall take such measures as are necessary to give effect to that subsection and that section as so applied.

The forum for seeking redress.

81E.—(1) A person who claims not to be receiving, or not to have received, equal pension treatment in accordance with this Part or to have been penalised in circumstances amounting to victimisation may, subject to subsections (2) to (6) and subsections (1) and (2) of section 81F, seek redress by referring the case to the Director.

(2) If a person claims to have been dismissed—

(a) in circumstances amounting to a breach of the principle of equal pension treatment by another in contravention of this Part, or

(b) in circumstances amounting to victimisation,

then, subject to subsection (3), a claim for redress for the dismissal may be brought to the Labour Court and shall not be brought to the Director.

(3) If the grounds for such a claim as is referred to in subsection (1) or (2) arise in relation to a breach of the principle of equal pension treatment on the gender ground, then, subject to subsections (4) to (7), the person making the claim may seek redress by referring the case to the Circuit Court, instead of referring it to the Director under subsection (1) or, as the case may be, the Labour Court under subsection (2).

(4) In this Part, in relation to a case referred under any provision of this section or section 81F—

‘the complainant’ means the person by whom it is referred;

‘the respondent’ means any or all of the following—

(a) the person who is alleged to have discriminated against the complainant in breach of the principle of equal pension treatment,

(b) the person who is responsible for admitting members to a scheme,

(c) the person who is alleged to be responsible for the victimisation and includes the trustees of an occupational benefit scheme.

(5) Subject to subsection (6), a claim for redress in respect of a breach of the principle of equal pension treatment or victimisation may not be referred under this section after the end of the period of 6 months from the date of termination of the relevant employment.

(6) On application by a complainant, the Director, the Labour Court or the Circuit Court as the case may be, may, for reasonable cause, direct that, in relation to the complainant, subsection (5) shall have effect as if for the reference in it to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and where such a direction is given, this Part shall have effect accordingly.

(7) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5) shall be construed as if the reference in it to the date of termination of relevant employment were a reference to the date on which the fact of misrepresentation came to the complainant's notice.

The forum for seeking redress — supplemental provisions.

81F.—(1) Where a claim for redress under this Part (other than on the age or disability ground)—

(a) relates to employment in the Defence Forces, and

(b) is made by a member thereof,

then the claim shall, in the first instance, be referred for redress under the procedure contained in section 104 of the Employment Equality Act 1998 as it applies to this Part.

(2) Where subsection (1) applies to a claim for redress, the complainant shall not refer a case under subsection (1), (2) or (3) of section 81E unless—

(a) a period of 12 months has elapsed after the referral under section 104 of the Employment Equality Act 1998 (as it applies to this Part) to which the claim relates and the procedures under subsection (2)(a) of the said section 104 have not been requested or have not been completed, or

(b) the complainant is not satisfied with the recommendation given under subsection (2)(b) of the said section 104 on the claim,

and, in a case to which paragraph (a) or (b) relates, the end of the period of time which is applicable under subsection (5) of section 81E (including, where appropriate, applicable under that subsection by reference to subsection (7) of section 81E) shall be construed as—

(i) the end of that period, or

(ii) the end of the period of 28 days from the expiration of the period referred to in paragraph (a) or the date of the recommendation referred to in paragraph (b),

whichever last occurs.

(3) A party to any proceedings under this Part before the Director or Labour Court may be represented by any individual or body authorised by the party in that behalf.

(4)  (a) Not later than 42 days from the date of a decision of the Director on an application by a complainant for an extension of time under section 81E(6), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director specifying the grounds of the appeal.

(b) On the appeal the Labour Court may affirm, quash or vary the decision.

(c) Effect shall not be given to a decision of the Director on such application until—

(i) the period of 42 days mentioned in paragraph (a) has expired, or

(ii) any appeal against it has been determined,

whichever first occurs.

(5)  (a) Not later than 42 days from the date of a decision of the Labour Court on an application by a complainant for an extension of time under section 81E(6), the complainant or respondent may appeal against the decision to the Circuit Court on notice to the Labour Court specifying the grounds of appeal.

(b) On the appeal the Circuit Court may affirm, quash or vary the decision.

(c) Effect shall not be given to a decision of the Labour Court on such an application until—

(i) the period of 42 days mentioned in paragraph (a) has expired, or

(ii) any appeal against it has been determined,

whichever first occurs.

(6) Section 81E and this section are subject to section 104 of the Employment Equality Act 1998 as it applies to this Part.

Disputes as to whether a scheme is defined benefit or defined contribution.

81G.—(1) Any dispute as to whether a scheme is a defined contribution scheme for the purposes of this Part 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) 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) and, on the hearing of that appeal, the High Court may determine the point of law accordingly.

Redress which may be ordered.

81H.—(1) Subject to this section, the types of redress for which a decision of the Director on a reference under section 81E may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order requiring that section 80 or 81 be complied with;

(b) an order that a person or persons specified in the order implement the principle of equal pension treatment from the date on which the rule of the scheme is amended to comply with an order under paragraph (a);

(c) an order that a person or persons specified in the order take a course of action which is specified in the order from a date so specified;

(d) an order for compensation for the effects of acts of victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 81E.

(2) The types of redress for which a determination of the Labour Court on a reference under section 81E may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) the orders referred to in subsection (1);

(b) an order for re-instatement or reengagement, with or without an order for compensation.

(3) The types of redress for which the Circuit Court may provide on a reference under section 81E(3) are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) the orders referred to in subsection (1);

(b) the order referred to in subsection (2)(b),

and no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation which may be ordered by the Circuit Court by virtue of this subsection.

(4) The maximum amount which may be ordered by the Director or the Labour Court by way of compensation under subsection (1)(d) or by that Court under subsection (2)(b), in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, shall be an amount equal to 104 times either—

(a) the amount of that remuneration, determined on a weekly basis, or

(b) where it is greater, the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of victimisation in question,

and in any other case, shall be €12,700.

(5) Where the case for which the redress is to be provided is referred to the Director or the Labour Court and arises in breach of the principle of equal pension treatment on the gender ground, the Director or the Labour Court, as the case may be, may, in addition to making an order for compensation, also order the payment of interest, at the rate which is applicable under section 22 (1) of the Courts Act 1981 —

(a) in respect of the whole or any part of the amount of the compensation, and

(b) in respect of the period beginning on the relevant date and ending on the date of the payment,

and, for the purposes of paragraph (b), ‘the relevant date’ means the first day of the period (if any) to which the compensation is expressed to be referable or, if there is no such period, the date of the reference under section 81E(1).

(6) An order for compensation under this section may not be made in favour of the Board in a case referred by the Board to the Director under section 85 (1) of the Employment Equality Act 1998 as it applies to this Part.

(7) Where an act constitutes victimisation both under this Part and the Employment Equality Act 1998 or the Equal Status Act 2000 , redress may be provided under only one of them.

(8) Where a delay in referring a case under this Part to the Director, Labour Court or Circuit Court is attributable to the respondent's having misrepresented to the complainant the facts of the case, references in this section to the date of referral shall be construed as references to the date of the misrepresentation.

(9) ‘Remuneration’ for the purposes of subsection (4) in relation to an employee includes occupational benefits and any consideration whether in cash or in kind which the employee receives, directly or indirectly, from the employer in respect of the employment.

Reports to the Director.

81I.—(1) If requested to do so by the Director, the Board shall answer, and prepare a report on any question specified by the Director and arising on the reference relating to an occupational pension scheme.

(2) Where a report is prepared for the Director under subsection (1), then—

(a) the Board shall furnish a copy of the report to the complainant and the respondent and to any other person to whom it relates, and

(b) the Director may rely on the report for the purposes of issuing a decision.

Application of Employment Equality Act 1998.

81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998 .

(2) Sections 74, 76, 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.

(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.”.

(1)