Advocate General of the Court of Justice of the European Union, Juliane Kokott, has given opinion that Trinity Lecturer, David Parris, was subjected to indirect discrimination by the college’s pension scheme rules, under the combined grounds of his age and sexual orientation.
The pension scheme was found not to be in compliance with the fundamental principle of equal treatment protected in EU law in Article 21 of the Charter of Fundamental Rights and specifically outlined in Council Directive 2000/78/EC. The relevant Irish law, Pensions Act 1990 as amended in 2004 also places a general prohibition on discrimination, including on grounds of age, sexual orientation and marital status.
Dr Parris lectured in Trinity College from 1972 to 2010, where he was a non-contributory member of the pension scheme. Under this scheme, where a member dies before his or her spouse or civil partner, a pension for life equal to the amount of two thirds of that entitled to that member will be paid to the surviving spouse or civil partner. However, this will only apply if the marriage or civil partnership was created before the member retired or reached the age of 60, whichever is the earlier.
The application made by Dr Parris for recognition of his civil partner’s right to a survivor’s pension was rejected by Trinity College, on grounds that the civil partnership was not entered into before his 60th birthday, a decision which was confirmed by the Higher Education Authority. Following an unsuccessful complaint to the Equality Tribunal, Parris appealed to the Labour Court who requested a preliminary ruling from the Court of Justice of the European Union.
The question to be considered was whether or not it constituted discrimination on grounds of either sexual orientation, or age, or a combination of both, to enforce a rule limiting the payment of survivor’s benefit by a requirement that the relevant civil partnership be entered into before the 60th birthday of the scheme member. This question was read in light of the fact that the couple had been in a committed life partnership for thirty years, but could not enter into a civil partnership under national law until after the date of Dr Parris’s 60th birthday had passed.
The court differentiated between direct and indirect discrimination. Direct discrimination occurs where a provision treats one person less favourably than another in a comparable situation, whereas indirect discrimination arises in situations where although a provision does not appear discriminatory on the face of it; its effect is to produce a less favourable outcome for one person over another in a comparable situation. It was held that the rule did not constitute direct discrimination on grounds of sexual orientation as it would have applied in the same way had Dr Parris married a woman after his 60th birthday, equally excluding her from the survivor’s pension.
With regard to discrimination on grounds of age, although the criteria of entering into partnership before the date of the member’s 60th birthday applies universally, the effect of this rule is indirectly discriminatory upon employees of homosexual orientation who were born before 1951. Under Irish law, it was legally impossible for same-sex couples to enter into a legally recognised civil partnership until the commencement of the Civil Partnership Act in 2011. Therefore, to restrict an occupational pension scheme to the condition that an employee’s civil partnership be contracted before the 60th birthday, in circumstances where it was legally impossible for him or her to do so, constituted indirect discrimination under the combined grounds of his age and sexual orientation.
Under EU law, indirect discrimination may be justified if the relevant measure objectively and proportionately pursues a legitimate aim. It was submitted that the reason for the 60th birthday criteria was to prevent elderly members from entering into marriages purely with the objective of securing benefits for their partners. The opinion stated that while this measure was not “manifestly inappropriate for preventing abuse”, it went beyond that which could be described as necessary to pursue the legitimate aim, and failed that test of proportionality by excessively curbing the interests of the employee in relation to those of the employer. The Advocate General held that the discriminatory rule ‘places an undue burden’ on employees who, as in the situation of Dr Parris, were both homosexual and had been born before 1951.
The full preliminary ruling is available here.