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 precisely the same as that which would have been paid to a heterosexual man. There was no reason for the company to anticipate that it would not become liable to pay a survivor’s pension to his lawful spouse. The date when that pension will come due, provided Mr Walker and his partner remain married and his partner does not predecease Mr Walker, is the time at which denial of a pension would amount to discrimination on the ground of sexual orientation.
‘it is vital to keep the two concepts distinct. ‘No retroactivity’ and ‘future effects’ are principles of law which apply to all EU legislation, unless a contrary intention can be found. The Barber exception is an example of a technique used by the CJEU to limit the generally retroactive application of its judgments, which it will only exercise in the most exceptional circumstances and where the impact would be truly ‘catastrophic’. The court limits the temporal application of its judgments in cases where reliance has been placed on a different understanding of the law and legitimate expectations may be upset, but only in the most special circumstances. Therefore, how the court exceptionally applies a temporal limitation to one of its rulings has no inevitable bearing on the temporal application of legislation as a matter of principle.’
‘Mr Walker’s husband, provided he does not predecease him, and that they remain married at the time of Mr Walker’s death, is entitled under the Framework Directive to a spouse’s pension calculated on the basis of all the years of Mr Walker’s service with Innospec. On that account, paragraph 18 of Schedule 9 is incompatible with the Framework Directive. In particular, paragraph 18(1)(b) which authorises a restriction of payment of benefits based on periods of service before 5 December 2005 cannot be reconciled with what I consider to be the plain effect of the Directive.’
Judges:
Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed, Lord Carnwath, Lord Hughes JJSC
Citations:
[2017] UKSC 47, [2017] IRLR 928, [2017] ICR 1077, [2017] WLR(D) 477, UKSC 2016/0090
Links:
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 20170308am Video, SC 20170308pm Video, SC 20170317am Video, SC 20170317pm Video
Statutes:
Civil Partnership Act 2004, Council Directive 2000/78/EC
Jurisdiction:
England and Wales
Citing:
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Cited – Andersson and Wakeras-Andersson v Svenska Staten ECJ 15-Jun-1999
(External relations) Article 234 EC (ex-Article 177) – EEA Agreement – Jurisdiction of the Court of Justice – Accession to the European Union – Directive 80/987/EEC – Liability of a State
Advocate General Jacobs said: ‘Retroactive effect . .
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – Barber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
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 . .
Cited – Vroege v Nciv Instituut Voor Volkshuisvesting Bv and Stichting Pensioenfonds Nciv ECJ 28-Sep-1994
1. Social policy – Male and female workers – Equal pay – Pay – Concept – Right to join a private occupational pension scheme – Included – Exclusion of married women from membership – Not permissible – Exclusion of part-time workers – Part-time staff . .
Appeal from – O’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
Cited – Innospec Ltd and Others v Walker EAT 18-Feb-2014
EAT Sex Discrimination : Sexual Orientation discrimination / transexualism : The recipient of an occupational pension since 2003, under the terms of a pension scheme which provided survivor’s benefits to spouses . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Land Nordrhein-Westfalen v Pokrzeptowicz-Meyer ECJ 29-Jan-2002
External relations – Europe Agreement between the Communities and Poland – Interpretation of the first indent of Article 37(1) – Prohibition of discrimination based on nationality as regards conditions of employment or dismissal for Polish workers . .
Cited – Maruko v Versorgungsanstalt der deutschen Buhnen ECJ 6-Sep-2007
ECJ Pension paid by a compulsory occupational pension – Refusal survival due to the absence of marriage to same-sex partners Directive 2000/78 / EC Scope Exclusion of social security benefits Concept of pay – . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Parris v Trinity College Dublin and Others ECJ 24-Nov-2016
No retrospection for pensions of civil partnership
ECJ (Judgment) Reference for a preliminary ruling – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 2 – Prohibition of discrimination on grounds of sexual orientation and age – . .
Cited by:
Cited – Miller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.
Discrimination, European
Updated: 20 May 2022; Ref: scu.589262