Court of Appeal affirms legality of discriminatory pension rules

07/10/15

The Court of Appeal has upheld the Employment Appeal Tribunal’s decision affirming the compatibility with EU law of domestic legislation that allows occupation pension schemes to treat civil partners (and now same-sex married couples) less favourably than married couples of different genders, perpetuating one of the few remaining areas of legal discrimination against gay men and lesbians.

Under the Equality Act 2010, schemes are required not to discriminate on sexual-orientation grounds, but an exception applies in respect of benefits relating to periods of service before 2005 (when civil partnerships were introduced). Many schemes have gone further than the law requires in equalising benefits for same-sex couples, but Innospec, the employer of the claimant and appellant, John Walker, stuck to the letter of the law. Its scheme provides a pension for the spouses of deceased members which, were Mr Walker to dissolve his union and marry a woman tomorrow, would pay her a significant pension in the event he predeceased her; but because Mr Walker retired in 2003, the scheme would give his husband only a statutory minimum of about £500 per annum in the same circumstances.

Innospec, and the Secretary of State for Work and Pensions (who intervened in the case as an interested party), argued that the exception under the Equality Act followed the established approach of EU law to equality of pension provision. Mr Walker argued that the cases on which the respondents relied all reflected exceptional limitations imposed in the field of gender equality, and in particular that two decisions of the Grand Chamber of the Court of Justice, Case C-267/06 Maruko v Versorgungsanstalt der deutschen Bühnen [2008] All ER (EC) 977 and Case C-147/08 Römer v Freie und Hansestadt Hamburg [2013] CMLR 11, clearly determined the issue in his favour. Both of those cases involved non-discrimination claims by men in the German equivalent of civil partnerships, and in both, Mr Walker contended, limitations based on contribution periods, of the sort provided for under the Equality Act, had been expressly rejected.

The Court of Appeal found the parts of Maruko and Römer on which Mr Walker relied “puzzling”, “opaque” and “difficult to understand”, but concluded that whatever the Court’s precise thinking had been it could not have intended to depart from the approach contended for by the respondents. It declined to refer a question to the Court of Justice on the basis that the issue was acte clair.

The judgment is here.

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