Sex and pensions: check your handbooks

The
House of Lords’ decision in Preston v Wolverhampton Healthcare NHS Trust
has helped to clarify some very difficult issues for employers on sex
discrimination and pension schemes. However, HR managers will have to check
contracts of employment and staff handbooks to make sure they are still not
vulnerable to claims, write Jonathan Chamberlain.

In
recent years, the main issue for employers was the question of part-time
workers, most of whom were women. The courts ruled some years ago that it was
sex discrimination to exclude them from membership of schemes, but that still
left two unanswered questions:

  1. When can
    people who might have been discriminated against bring a claim?
  2. What is the period of
    service in respect of which they can make a claim?

This
decision was a sensible compromise. Their Lordships decided that claims would
have to be brought within six months of service ending, but the claims can then
relate back to all service since 1976.

Employers
will need to review their position urgently. However, fears that thousands more
claims might be made seem largely to have been allayed.

Claims
will now only be possible if they were brought within six months of service
ending, or if they relate to someone who is still in employment. Moreover,
employees seeking to benefit from this ruling will be required to make good any
past contributions required by their pension scheme.

Even
so, Employment Tribunals will now have to reactivate the 60,000 or so IT claims
which are thought to have been held in abeyance whilst this matter was
considered by the Lords.

On
the whole, this judgment is helpful and clear. There are still some grey areas
which will need further analysis, such as the question of whether people can
bring contractual claims within six years. I believe employers should be:

*
Reviewing any files they have where there are IT claims which have been stayed
pending the outcome of this case.
* Ensuring that any discriminatory elements in their pension schemes have been
removed (most have)
* Reviewing their contracts of employment and pension scheme documentation.

This
last point may be the most important of all. Most employers manage to make it
clear that the provisions of their pension scheme are not incorporated into the
contract of employment – the contract just makes it clear that the employee may
be eligible to join the scheme, subject to its terms and conditions from time
to time.

This
is now more important than it ever has been in the context of historical sex
discrimination claims. If a discriminatory provision has been incorporated into
a contract, there may be a contractual claim even after the six month
limitation period has expired.

Jonathan
Chamberlain is employment partner at Wragge & Co

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