The claimant, who had begun his employment with the respondent company in 1980, retired from that employment in March 2003 and was in receipt of a pension under the company’s occupational pension scheme. In January 2006 he registered a civil partnership under the Civil Partnership Act 2004 with a man with whom he had lived since 1993. Under the rules of the scheme his partner, if he survived him, would be entitled to a survivor’s pension of only £500 per annum, whereas a widow would have been entitled to a two-thirds pension. The claimant made a claim of unlawful discrimination on the ground of sexual orientation, relying on section 61 of the Equality Act 2010. In its response the company relied on paragraph 18(1)(b) of Schedule 9 to the 2010 Act as precluding any claim, in so far as it related to discrimination on the ground of sexual orientation, to a benefit payable in respect of periods of service before 5 December 2005, when the 2004 Act had taken effect. An employment tribunal upheld the claim, holding that paragraph 18 was incompatible with Council Directive 2000/78/EC. The Employment Appeal Tribunal allowed an appeal by the company and the trustees of the pension fund, holding that, since that Directive did not provide that its provisions applied retrospectively, inequalities on the ground of sexual orientation in paying occupational pension benefits, accrued during service prior to the latest date for transposition of the Directive, were not retrospectively unlawful, and that, accordingly, the claim could not succeed, given that all the claimant’s service had been completed by that date. The Court of Appeal dismissed the claimant’s appeal.
On the claimant’s appeal—
Held, appeal allowed. Unless evidence established that there would be unacceptable economic or social consequences of giving effect to the claimant’s entitlement to a survivor’s pension for his husband, at the time when that pension would fall due, there was no reason why he should be subjected to unequal treatment as to the payment of that pension. The point of unequal treatment occurred at the time when the pension fell to be paid. The claimant was entitled to have for his married partner a spouse’s pension at the time he contracted a legal marriage. The period during which he acquired that entitlement had nothing whatever to do with its fulfilment. Likewise, the financing of the retirement scheme should have been planned taking into account a possible change in the claimant’s marital status.He could not have been denied entitlement to a spouse’s pension if, perfectly legally, he had married a woman after he retired. His marriage to was just as legal as would be a heterosexual marriage and his entitlement to a spouse’s pension was equally well-founded. The claimant’s husband, provided that he did not predecease him and that they remained married at the time of the claimant’s death, was entitled under the Directive to a spouse’s pension calculated on the basis of all the years of the claimant’s employment with the company. Non-discrimination on grounds of sexual orientation was now a principle of European Union law. It followed that any contemporary denial to his husband of a spouse’s pension, calculated on all the years of the claimant’s service, would be incompatible with the Directive. Accordingly, in so far as paragraph 18 of Schedule 9 to the Equality Act 2010 authorised that, it had to be disapplied (paras 55–58, 72–74, 76, 77–78).
Per Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore and Lord Reed JJSC. The consistent theme of the jurisprudence of the Court of Justice of the European Union is that rights established by legislation should be activated at the time when they were stated to exist (para 46).
Martin Chamberlain QC and Max Schaefer (instructed by Liberty) for the claimant.
Nicholas Randall QC and Claire Darwin (instructed by Eversheds Sutherland (International) LLP, Manchester) for the respondents.
Jason Coppel QC and Holly Stout (instructed by Treasury Solicitor) for the Secretary of State for Work and Pensions, as an interested party.