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Equality for ALL: pension rights for same-sex couples

It appears that there was another massive step in favour of equality, again out of the Supreme Court, as a man has won equal pension rights for his husband. Essentially, the decision of the court means that a former cavalry officer’s husband will enjoy the same pension rights as a widow of the opposite sex generally would upon his death.

The case itself was argued on the basis of discrimination in that a widow of the opposite sex would be entitled to £45,000 per year, whereas the husband of the Claimant would have been a mere £1,000 per year in contrast. The full judgment of the case can be found here: Walker (Appellant) v Innospec Limited and others (Respondents) [2017] UKSC 47 On appeal from [2015] EWCA Civ 1000.

The Claimant in this case, a Mr Walker, aged 65, has been in a relationship with his partner, aged 52, since 1993. During that time,they entered into a civil partnership in January 2006, as provided by the Civil Partnership Act 2004 came into force in December 2005. This was later converted into marriage, owing to the enactment of Marriage (Same Sex Couples) Act 2013.

Interestingly, in this particular case, the Supreme Court unanimously allowed Mr Walker’s appeal. This overrules the judgments of both an employment appeal tribunal and the Court of Appeal, who had both previously declared that the 2010 Equality Act permitted businesses to restrict benefits generated by periods of service by individuals before 2005.

The Supreme Court made two particular findings, which cause a variety of interesting points of discussion. I will take both in turn.

Firstly, the Supreme Court have declared that paragraph 18 of Schedule 9 to the Equality Act 2010 is incompatible with EU law and must be disapplied.The particular directive we are concerned with is: EU Directive 2000/78/EC, which requires the UK to prohibit discrimination in the field of employment and occupation on various grounds, which include sexual orientation. One obvious issue is that this was decided under an EU directive, and the UK are in the process of leaving the EU which jeopardises the position of this decision as the protection afforded by the judgment may well be lost. The decision would arguably have no further application in the UK, this losing a significant part of the force afforded to it. This was highlighted by Emma Norton, the lawyer working with Mr Walker, who has raised concerns and publicly stated that the Government will not change their position with regards to LGBT+ rights when Brexit is to happen. There is a need for the Government to make a full commitment to protect these rights within UK law.

Secondly, the Supreme Court held that Mr Walker’s husband is entitled on his death to a spouse’s pension, provided they remain married at para 61 of the judgment:

"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."

Lord Kerr gave the leading judgment of this case, with Lady Hale (recently named as the next President of the Supreme Court) and Lord Reed agreeing in full. It should be noted that Lords Carnwath and Hughes both gave a judgment concurring in part only, and put qualifications/conditions on the success of the case.

There is further support of this judgment in the form of two recent decisions of the Grand Chamber of the CJEU. They concerned the equal treatment rights of same-sex partners to the survivor’s pensions, and on the face of it, quite clearly remove any doubt as to whether this was unlawful. Both of these cases established an important point: unless there is evidence which proves that there would be either some form of inappropriate or unacceptable economic or social consequences of giving Mr Walker’s entitlement to a survivor’s pension for his husband, at the time that this pension would be due (i.e. upon death), then there is no reason why in law, that the husband should be subjected to unequal treatment as to the amount of money within the payment of that pension.

There may be implications in terms of pensions. The Department for Work and Pensions (DWP) has warned that these fears regarding costs would be generated by the retrospective effect to the EU framework directive. Whilst the Government haven't responded in full, they have stated that they “are reviewing the implications of this judgment in detail and will respond in due course."

Finally, one could argue that the case raises an important concern, from a much broader perspective - how many more times will the Government be challenged on the basis of unlawful discrimination with their existing policies or current legislation? There may be an argument that there should be further steps required by way of reviewing the law, possibly through the Public Law team at the Law Commission, who are tasked with researching issues arising from law, and forwarding proposals of reform.

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