Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the employment relationship, which facilitates his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment. Such benefits paid in connection with a compulsory redundancy consequently fall within the scope of the second paragraph of Article 119 of the Treaty, whether they are paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis. Unlike the benefits awarded by national statutory social security schemes, retirement pensions paid under private occupational schemes, which are characterized by the fact of being established either by an agreement between workers and employers or by a unilateral decision taken by the employer – whether financed by the employer alone or by both the employer and the workers – which may by law with the employee’ s agreement operate in part as a substitute for the statutory scheme and which apply only to workers employed by certain undertakings, constitute consideration paid by the employer to the worker in respect of his employment and consequently fall within the scope of Article 119 of the Treaty. The fact that a private occupational scheme has been set up in the form of a trust and is administered by trustees who are technically independent of the employer does not affect that interpretation of Article 119 since that provision also applies to consideration received indirectly from the employer.
3. Article 119 of the Treaty prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality. Accordingly, it is contrary to that provision to impose an age condition which differs according to sex for the purposes of entitlement to a pension under a private occupational scheme which operates in part as a substitute for the statutory scheme, even if the difference between the pensionable age for men and that for women is based on the one provided for by the national statutory scheme.
4. With regard to equal pay for men and women, genuine transparency, permitting an effective review by the national court, is assured only if the principle of equal pay must be observed in respect of each of the elements of remuneration granted to men and women, and not on a comprehensive basis in respect of all the consideration granted to men and women.
5. Article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that provision, without national or Community measures being required to define them with greater precision. The national court before which that provision is relied upon must safeguard the rights which it confers on individuals, in particular where a private occupational pension scheme which operates in part as a substitute for the statutory scheme refuses to pay to a man on redundancy an immediate pension such as would be granted in a similar case to a woman.
6. Since the Member States and the circles concerned may, in the light of Directives 79/7 and 86/378, have misunderstood the precise extent of their obligations with regard to the implementation of the principle of equality between men and women for the purposes of the grant of certain retirement benefits, overriding considerations of legal certainty preclude the direct effect of Article 119 of the Treaty from being relied upon in order to claim, under a private occupational pension scheme which operates as a substitute for the statutory scheme, entitlement to a pension with effect from a date prior to that of the judgment upholding, in proceedings for a preliminary ruling, the applicability of that article to pensions of that type, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.
he court recorded the submissions of the Commission and the UK government:
‘the Commission has referred to the possibility for the court of restricting the effect of this judgment ratione temporis in the event of the concept of pay, for the purposes of the second paragraph of article 119 of the Treaty, being interpreted in such a way as to cover pensions paid by contracted-out private occupational schemes, so as to make it possible to rely on this judgment only in proceedings already pending before the national courts and in disputes concerning events occurring after the date of the judgment. For its part the United Kingdom emphasised at the hearing the serious financial consequences of such an interpretation of article 119. The number of workers affiliated to contracted-out schemes is very large in the United Kingdom and the schemes in question frequently derogate from the principle of equality between men and women, in particular by providing for different pensionable ages.’ Taking the course that the Commission and the UK government had invited it to follow was only possible as an exceptional measure. It said that ‘it may, by way of exception, taking account of the serious difficulties which its judgment may create as regards events in the past, be moved to restrict the possibility for all persons concerned of relying on the interpretation which the court, in proceedings on a reference to it for a preliminary ruling, gives to a provision.’
Citations:
(1990) ICR 616, C-262/88, [1990] ECR I-1889, [1991] 1 QB 344, R-262/88, [1990] EUECJ R-262/88
Links:
Jurisdiction:
European
Cited by:
Cited – William James Quirk v Burton Hospital NHS Trust the National Health Service Pensions Agency CA 12-Feb-2002
The applicant appealed a refusal to rule that the system of allowing females better retirement options than would be granted to him as a Health Service employee were sexually discriminatory. The difference arose because of differentials applied . .
Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Cited – In the Matter of the Universities Superannuation Scheme – Universities Superannuation Scheme Ltd v Simpson, Mcadoo, University of London ChD 29-Apr-2004
Members of the superannuation scheme complained that trustees were calculating the benefits payable on early retirement by reference to the standard terms of employment, and even though they had particular and different terms.
Held: The . .
Cited – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Cited – Trustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
Cited – Coloroll Pension Trustees v Russell and others (Judgment) ECJ 28-Sep-1994
The trustees of a pension fund have the same equal treatment obligations as do employers. The effect of the judgment in Barber was that: ‘i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male . .
Cited – Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 16 August 2022; Ref: scu.134949
