Ex-army officer John Walker has this month won a landmark case in the Supreme Court by successfully challenging the impact that the Civil Partnership Act 2004 has had on his pension rights.
The Act provided Mr Walker and his partner, who is now his husband, with equality of pension rights going forward from 5 December 2005, but it did not impose equality of pension rights for past pensions rights which Mr Walker had earned with his employer, Innospec.
This meant that on the death of Mr Walker, his husband would only receive a pension of approximately £1,000 – whereas if he received equal value for the pension rights he earned before 5 December 2005, he would receive a pension of around £45,000. The couple have been together since 1993 and Mr Walker had paid the same pension contributions as married members.
The pension requirements of the Civil Partnership Act are now set out in an exemption in the Equality Act 2010. An employer has to treat a civil partner in the same way as a spouse on the death of a scheme member but only going forward. The Equality Act itself is based on EU legal requirements under EU Directive 2000/78. Innospec argued that Mr Walker’s pension benefits should not be backdated to a period before civil partnerships were legally recognised. Mr Walker argued that the EU Directive should be read in accordance with Article 1 of Protocol 1 to the European Convention on Human Rights.
The Court of Appeal decided that there was no principle of retroactivity here – UK legislation cannot have retrospective effect unless there is clear intention by Parliament that the law should apply retrospectively. Instead the law applies with immediate effect from the time when it becomes law. Also Mr Walker earned fixed rights in the pension scheme before the new law came in and these could not be adjusted retrospectively. The Supreme Court decided the Court of Appeal had not applied EU case law properly.
The Supreme Court decided unanimously that Mr Walker’s husband would be entitled to the same pension rights from his former employer’s pension scheme after Walker's death as would be payable by the scheme of a heterosexual married couple.
Many schemes have decided voluntarily, with the agreement of pension trustees and employers, to give same sex civil partners and same sex married couples the same benefits as heterosexual married couples would receive under their pension scheme. This case now requires the trustees and employers of all other pension schemes to do the same. The Government actuary has calculated the cost to private sector schemes of doing this would be in the region of £100m but it would be far less for public sector schemes.
Penny Cogher, pensions expert at law firm Irwin Mitchell, said:
“This case highlights the changes of attitude as regards the rights of same sex couples in 2004 compared to now. In 2004 when the Civil Partnership Act was running through Parliament, it was novel legislation, whereas now society expects employers to treat their employees who are in same sex relationships in exactly the same way as employees who are heterosexual couples. The Supreme Court’s decision won’t provoke an outcry – it is the type of judgment one would expect in a modern society, with human rights law being carefully used to fill any gaps and push the law in a progressive direction. It shows the Supreme Court is not so out of touch with today’s social norms as people say.”
In light of this ruling, trustees should:
check their trust deed and rules to see what benefits their scheme currently gives for same sex married or civil partner couples
update their member communications
review their membership to see if there are members who should receive backdated benefits
decide on what policy to operate for determining quite when the same sex couple entered into a marriage/civil partnership type relationship for the purposes of paying backdated scheme benefits.
Published:21 July 2017
Pensions Law Update - July 2017
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