Supreme Court gives gay man equal pension rights

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The Supreme Court has granted an appeal in a case where a worker claimed his same-sex partner should get the same pension benefits as a wife or heterosexual partner would if he dies.

This means that the husband of John Walker, an ex-cavalry officer who worked for chemicals company Innospec, will now be entitled to a full spouse’s pension on his death, provided they remain married.

The decision also means that all married gay couples and civil partners should receive equal pension rights going forward.

Walker (pictured) retired from Innospec in 2003 after working there for 23 years, and in 2006 asked his employer to confirm whether, in the event of his death, they would pay a spouse’s pension to his civil partner.

Innospec refused, pointing to the fact that Walker’s service pre-dated 5 December 2005, when civil partnerships were introduced in the UK. It claimed that this meant any discriminatory treatment would therefore be permitted under paragraph 18 of Schedule 9 of the Equality Act 2010.

Walker claimed that, if he were to marry a woman, she would be entitled to around £41,000 a year in the event of his death, while his husband would only receive around 1% of the amount.

He made a successful tribunal claim for direct discrimination in 2013, but this went to the Employment Appeal Tribunal, where the Department for Work and Pensions claimed that not backdating the benefits for same-sex spouses was not in contravention of EU law.

The EAT agreed, and the Government then carried out a review of same-sex survivor benefits. It estimated the cost of equalising pension schemes and backdating pay-outs for same-sex couples could be as much as £3 billion.

Then, in October 2015, the Court of Appeal dismissed Walker’s case, meaning pension schemes would not be obliged to provide civil partners of scheme members to benefits in respect of service before 5 December 2005.

A panel of judges at the Supreme Court have now said that Walker can appeal this decision, claiming that the element of EU law cited by Innospec and the DWP “must be disapplied”.

In its judgment, it said:

“Although EU law does not impose any requirement on member states to recognise same-sex partnerships, the European Court of Justice has held that if a status equivalent to marriage is available under national law, it is directly discriminatory contrary to the Framework Directive for an employer to treat a same-sex partner who is in such a partnership less favourably than an opposite-sex spouse. Thus in the UK it is unlawful as a matter of both EU and domestic law for an employer to deny a same-sex civil partner or spouse of an employee a benefit that would be provided to a spouse of the opposite sex.”

It referred to two ECJ decisions (Maruko v Versorgungsanstalt der Deutschen Bühnen and Römer v Freie und Hansestadt Hamburg) which confirmed that, unless evidence establishes that there would be unacceptable economic or social consequences of providing the full pension benefit to a same-sex partner at the time it is due, there should be no reason that he should be subjected to unequal treatment.

The Supreme Court added that the Court of Appeal had been wrong to conclude that entitlement to a survivor’s pension should be “permanently fixed” at an employee’s date of retirement.

Responding to the decision, Walker said: “I am absolutely thrilled at today’s ruling, which is a victory for basic fairness and decency. Finally this absurd injustice has been consigned to the history books – and my husband and I can now get on with enjoying the rest of our lives together.

“But it is to our Government’s great shame that it has taken so many years, huge amounts of taxpayers’ money and the UK’s highest court to drag them into the 21st century. In the years since we started this legal challenge, how many people have spent their final days uncertain about whether their loved one would be looked after? How many people have been left unprovided for, having already suffered the loss of their partner?

“What I would like from Theresa May and her ministers today is a formal commitment that this change will stay on the statute books after Brexit.”

Emma Norton, a lawyer for civil liberties group Liberty, which represented Walker, echoed this concern that the decision may not remain binding once the UK leaves the EU. She said: “We are delighted the Supreme Court recognised this pernicious little provision for what it was – discrimination against gay people, pure and simple.

“But this ruling was made under EU law and is a direct consequence of the rights protection the EU gives us. We now risk losing that protection. The Government must promise that there will be no rollback on LGBT rights after Brexit – and commit to fully protecting them in UK law.”

Mark Howard, head of pensions at Clyde & Co, said: “This decision will make a significant difference for same-sex couples where they have membership of an occupational pension schemes.

“The Government considered removing this inequality in 2014, but seemed to quietly drop the idea as the cost for the public sector was estimated at almost £3 billion.

“For private sector schemes, the cost was estimated at under £0.5 billion and this decision may not have a material effect on funding requirements for private sector defined benefit schemes.”

Elizabeth Gane, a partner at Gowling WLG, said there will be a “minimal immediate impact” as many pension schemes already assume that a proportion of their members are married, regardless of whether they are in a same-sex partnership.

She added: “More widely, the decision could have wide reaching implications for the application of discrimination law, because the decision is effectively allowing protection for pension scheme members in respect of periods before protective discrimination legislation came into force.”

A detailed case report can be found on XpertHR

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