Opinion

Equal pension rights for same sex spouses and civil partners

25th July 2017

The Supreme Court has held that civil partners and same sex spouses are entitled to equal pension benefits that accrued prior to the introduction of civil partnerships in 2005.

In Walker v Innospec Ltd and others, Mr Walker worked for his employer for a period of 23 years. He retired in 2003 and until retirement made regular contributions to his pension fund. Mr Walker applied for civil partnership on 5 December 2005 which was registered on 23 January 2006. He had been with living with his male partner, Mr Jantan, since 1993.

The company’s pension scheme provided a survivors pension fund for a spouse. Mr Walker’s partner was treated as his civil partner from 5 December 2005. Mr Jantan was as a result entitled to £1,000 per annum from 5 December 2005. Had Mr Walker been married to a woman, she would have been entitled to £45,700 per annum.

The employer argued that given that Mr Walker’s service predated the introduction of civil partnerships, paragraph 18(1) of Schedule 19 of the Quality Act 2010 (“EA 2010”) would have permitted discriminatory treatment. As per paragraph 18, a pension scheme can restrict a person who is not married from having access to a benefit, where the right to the benefit accrued before 5 December 2005. In support of his argument, Mr Walker referred to section 61 EA 2010 which sets out that occupational pension schemes are to be taken to include a rule of non-discrimination. Mr Walker brought his claim to the Supreme Court following rejection of the claim by the Employment Tribunal and Employment Appeal Tribunal.

The Supreme Court reasoned that EU Law does not impose a requirement on member states to recognise same sex marriage. However, if there is a status available and it is equivalent to marriage, it would be directly discriminatory to treat a same-sex partner who is in such a partnership less favourably than an opposite-sex spouse.

Mr Walker’s spouse was therefore deemed to be entitled to receive the relevant pension benefits in respect of Mr Walker’s entire employment duration. A decision that is certainly to be welcomed and which clearly clarifies the position in respect of accrued pension entitlements in respect of same-sex civil partnerships and marriage.

 

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