TCD's 'Gold-Digger' Clause Causes Pension Equality Strife For David Parris

David Parris sitting on a couch with a purple shirt on and suspenders while holding a cup of coffee as he discusses Pension Equality and his former employer Trinity College Dublin, TCD

Trinity College Dublin says it is welcoming of LGBT students and employees, but former lecturer at the institution, David Parris, who is fighting for his husband to be entitled to a survivor’s pension, disagrees. Words by Brian Finnegan.

 

“Trinity is proud of its LGBT-inclusive culture – if you come here as an LGBT student or staff member you can expect a warm welcome and equal treatment.” So goes a quote on the sexual orientation section of Trinity College Dublin’s equality website, above which stands the headline, ‘Inclusive Employer’.

One man who disagrees with that statement is retired TCD lecturer, David Parris.

David (who has dual British and Irish nationality) took up his post in Trinity’s French Department in 1972. Ten years later he met his partner, Gerhard Scully on a night out in Dublin’s Hirschfield Centre. “I’m not sure when we would have married, had marriage been available to us, but by the end of the year we had moved in together,” David says over coffee and hot cross buns in the home he still shares with Gerhard. The pair has been together for 37 years and had a civil partnership in Britain in April 2009.

“At the time I thought I was at death’s door,” David explains. “I wanted to get a civil partnership registered before I died. I couldn’t imagine it ever coming into Ireland, but within months of getting a British civil partnership, lo and behold it became possible at home. Had I known that in advance, it would have been my preferred option.”

After the couple had registered their relationship, David received a request from Trinity to update his personal data, so he replied saying that they should now record him as being married. “They wrote back, saying they would not do that and that I had to be registered as single,” David says. “The law did not require them to register me as married, but nevertheless I didn’t see why they couldn’t have done so.”

david parris in a purple shirt standing beside a window before he sits down to explain the pension equality difficulty he is having with Trinity College Dublin

David retired at the end of 2010, aged 64, but he foresaw an issue with his pension. Because of a so-called ‘gold-digger’ clause in the TCD pension scheme, which prevents the spouses of members who got married after the age of 60 from receiving a survivor’s pension, Gerhard would not be entitled to receive any of David’s pension in the event of his death. Having not been allowed to have a civil partnership before he was 60, he brought the discrepancy to the TCD Equality Office’s attention.

Click below to see how TCD Equality Office responded to Parris.“In my naivety, I expected them to say, ‘Oh! Thank you for drawing that to our attention, we’ll set that straight’,” David says. “I was amazed when they said, we can’t, because that’s the law.”

However, according to David, this isn’t quite true. “Each pension fund sets up its own rules and is at liberty to vary those rules. Some years before the introduction of same-sex marriages, there was a review of the rules and they had decided against making any changes to the ‘gold-digger’ clause. If you take the date of the introduction of civil partnerships in Ireland, which came into force in 2011, and take 60 away from this and you get 1951, so any gay or lesbian employee born before 1951 cannot have a survivor’s pension. I was born in 1946.”

Under the rules, gay and lesbian people employed by TCD who marry or married before the age of 60 are entitled to a survivor’s pension. “For us, it’s a kind of double inequality,” says David. “Gerhard and I are not equal to younger gay and lesbian people, who do have all of these entitlements, but there are some gay and lesbian people of comparable age to us who do get this in other pension schemes.”

Having received a negative response from TCD, David took his case to the Equality Tribunal, but he was not successful.

“The judge who heard our case said we could not have the survivor’s pension because it involved retrospection,” says David. “I was not looking for back payment of the pension, I was looking for it to be paid in the future, so there wasn’t any retrospection.”

David appealed the Tribunal’s decision at the Labour Court, which then sought the advice of the European Court of Justice (ECJ), the EU’s highest court. In June 2016, the ECJ’s Advocate General Juliane Kokott recommended finding in David and Gerhard’s favour.

“In the present case, particular attention will have to be given to the fact that any discrimination perpetrated against the person concerned is attributable to a combination of two factors, age and sexual orientation,” Kokott wrote. “The Court’s judgment will reflect real life only if it duly analyses the combination of those two factors, rather than considering each of the factors of age and sexual orientation in isolation.”

“Reading the opinion was an emotional experience,” says David. “I thought it was as fine a piece of legal writing as I have ever seen, and remarkably humane. One possibility is that she foresaw that there would be problems and she pulled out all the stops to try and make it hard to ignore her opinion.”

However, in November of the same year, the ECJ dismissed David’s claim of unfair treatment on the grounds of sex and age discrimination by TCD. The court found that the rule that partners must marry or enter a civil partnership before the age of 60 applied to homosexual and heterosexual people equally and so was not directly discriminatory.

“No reference was made to Kokott’s opinion, not even to dismiss it,” says David.

Keep reading to find out how Senator Bacik has acted to help her former TCD colleague, Parris.His case is still before the Labour Court, which has not yet scheduled a date. Meanwhile, Senator Ivana Bacik has introduced a private member’s pensions bill to the Seanad, which if passed by the government would circumvent the need for David to continue fighting his case.

“I knew about the case years ago, because David and I were colleagues in the French department in Trinity, and I’d been following it with interest,” says Bacik. “I’d expected him to win at the European Court of Justice because the Advocate General had given a favourable opinion, which is usually a hugely good sign. It was a surprise when it didn’t rule in his favour.”

Bacik’s Bill would have the effect of making an exception for gay and lesbian couples who were unable to get married because of the prevailing legislation and are hence excluded from survivor pension entitlements. It was debated in the Seanad on March 22, passing its second stage and receiving cross-party support. David and Gerhard were in attendance, as was the Minister for Social Protection, Leo Varadkar.

“It was a very heartwarming experience,” says David. “I expected there to be rows of opponents shouting cheap abuse. There were 11 speakers, all of whom were in support of the bill.

“Leo Varadkar was supportive, but he said a number of things about the legal problems that would ensue if we were to go forward with the act. The suggestion, as I understood it, was that if TCD pay a survivor’s pension to Gerhard, they will have to reduce entitlements to all the others in the scheme, and if they reduce the entitlement to all the others, then the others may take legal action.”

“I think the objections are spurious,” says Bacik. “One of them was where you might have a small pension fund with a relatively small number of employees paying in, and the trustees might be opposed to opening up eligibility for more people because this might reduce the overall pot for the others. I thought this was a weak argument. Somebody getting married later in life might reduce the pot for everyone else, but nobody is going to oppose that.”

An off-the-cuff statement from Varadkar, which is on the record in the Seanad, suggests that there may not be a need for Bacik’s bill after all. “The minister said that maybe it would be possible to make the necessary change through an amendment to the social welfare and pensions bill, rather than having a stand-alone bill,” Bacik explains. “I jumped at this because it would be much easier and quicker. It’s preferable to the tortuous process of getting a private member’s bill into law, which can take years, even if you’ve got government approval on it. So, I’m following that up with the minister’s officials now in the Department of Social Protection.

“If that doesn’t work, I’ll be bringing my bill back either into committee stage and our own private member’s time, if I can’t get the government to agree it. Often you have to keep pushing. It’s unusual to get a private member’s bill into law, most of them tend to flounder after [the] second stage, but if you do, it can take up to a year or 18 months.”

In the meantime, David is left wondering about TCD’s motives in fighting against his case. “On one side of the legal case there is me, because Gerhard is not a plaintiff, and on the other, there is Trinity College, the Pension Scheme and the Higher Education Authority, so there are three and they are opposing this rigorously. Legal action is structured in a way that I have to say I would like to have this entitlement and provide a series of reasons why. The other side is under no such obligation. They simply have to oppose the argument, so I have no clear idea of what their reasons or motivations are.

“Supposing the people who were excluded from this pension entitlement belonged to a different group, say women, what do you imagine we might have had? I cannot conceive that there would not have been a great outcry and that the pension fund would not have used its right to review its rules in order to ensure there was equality. It all seems to be based on the assumption that there is infinite scope for heterosexual pensions, but same-sex partnerships are ludicrously expensive.”

The legalities of the fight for Gerhard’s survivor’s pension are one thing, but the personal feelings the situation has engendered are another.

“Many of the people who will get a survivor’s pension from Trinity College have not been together as long as Gerhard and I have been together,” says David.

“I shared an office for many years with a colleague at Trinity, who died recently. I was immensely upset at losing him, however, at his funeral, there was the thought that his widow would be adequately provided for, and when it came to my turn to have a funeral, that Gerhard will not be. It’s a painful thing.

“The college’s equality office say that lesbian and gay members of the staff and students will be assured a very warm welcome, but I’m not sure when you are having your pension entitlements refused that a feeling of warmth is the same. It’s for other people to judge whether it’s possible to reconcile the claims they make on the website and the facts as we know them. I have attempted to do so on my own behalf, and failed.”

© 2017 GCN (Gay Community News Ireland). All rights reserved.

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