From the blog: On March 8 and 9, the Supreme Court will hear the case of Walker v Innospec.
John Walker was a member of Innospec’s pension scheme until he left in 2003. He entered into a civil partnership in 2006.
The scheme stated that civil partners would receive a survivor’s pension only in respect of service after December 2005.
Mr Walker entered into a civil partnership in 2006 (the couple have since been married).
Whatever the outcome of the appeal, it remains open to the government to legislate against this apparent unfairness
The scheme stated that civil partners would receive a survivor’s pension only in respect of service after December 2005.
Registered civil partners have to be treated the same way as a spouse in relation to pension benefits but only in relation to pensionable service from December 5 2005 – the date when the Civil Partnership Act 2004 came into force.
Mr Walker was told by Innospec that in the event of his death, his partner would not be entitled to a survivor’s pension based upon his pensionable service. Mr Walker complained to an employment tribunal that this was discriminatory on the grounds of sexual orientation.
His argument was straightforward – same-sex couples were comparable to married couples and it was direct discrimination to treat them less favourably than married couples on the grounds of sexual orientation.
The employment tribunal agreed with him, but on appeal the employment appeal tribunal and the Court of Appeal did not:
EU legislation does not have retrospective effect unless it is very clear that this is what was intended. Based on this, the Equal Treatment Directive did not have retrospective effect.
The court decided that rights to benefits were acquired during a period of service and fixed at the end of that service, even though the pension might be payable years later.
On the face of it, the decision seems very unfair. Nevertheless, the scheme rules were lawful at the time the benefits were earned and were not retrospectively rendered unlawful by new legislation.
The Court of Appeal was sufficiently confident to not make a referral to the European Court of Justice on the point, but the decision has been appealed to the Supreme Court.
Whatever the outcome of the appeal, it remains open to the government to legislate against this apparent unfairness. Whether or not it will remains to be seen.
Sarah Rushton is an employment partner at law firm Moon Beever