Court Of Appeal Rules On Survivor's Benefits For Same Sex Married Couples

The Court of Appeal has dismissed an appeal against the decision of the Employment Tribunal (EAT) in Innospec v Walker [2015] EWCA Civ 1000 confirming the treatment of survivor's benefits for civil partnerships and same sex married couples.

Background

From 5 December 2005 civil partnerships were introduced, giving same-sex couples legal recognition and rights and obligations similar to those of married couples. For occupational pension schemes an overriding non-discrimination rule was introduced requiring schemes to treat survivors of civil partnership in the same way as a survivor of an opposite sex marriage, but only for pensionable service from 5 December 2005 and for contracted-out rights accruing post April 19881.

Having retired from Innospec in 2003 and entered into a civil partnership in 2006, Mr Walker wanted to ascertain the amount of survivor's pension that his civil partner would receive in the event of his death under the company's pension scheme. However because all of Mr Walker's pensionable service pre-dated 5 December 2005, his partner would only receive a very small proportion based on his contracted-out rights

The Employment Tribunal upheld Mr Walker's complaint, finding that the Innospec pension scheme trustees had unlawfully discriminated against Mr Walker, both directly and indirectly on the grounds of his sexual orientation.

However on appeal by Innospec the EAT overturned the first instance decision. It was held that the partial exemption from the requirement to equalise, enacted in the Equality Act 2010, was valid and further that this exemption was compatible with the EU Framework Directive ("the Directive"). The EAT also ruled that the Directive did not have retrospective effect in relation to inequalities which arose on the basis of sexual orientation before the date the Directive was required to be transposed into national law (1 December 2003). Therefore the requirement to equalise does not apply to pensionable service before 2005. Accordingly there was no unlawful discrimination.

For further detail relating to the Employment Tribunal's and EAT's decisions see our brief dated 11 March 2015 Pensions and same sex relationships: the Marriage (Same Sex Couples) Act 2013 and EAT decision in Innospec v Walker.

Appeal

Mr Walker appealed the EAT's decision and the Court of Appeal has rejected his appeal on the following grounds:

EU legislation cannot have 'retroactive effect'2. At the time when Mr Walker earned...