Key facts
The employer ran an occupational pension scheme which, at various times over the past few decades, had not been open to part-time workers (the "closed periods"). The employer conceded that, during the closed periods, the part-time workers were subject to indirect discrimination which was not justified. An opt-out principle was applied under which the employer refused to allow employees to join with retrospective effect if it believed that they would not in fact have joined earlier had they been eligible to do so. The employer took the view that if an employee had not joined within three months of becoming eligible then they would not have joined earlier in any event. The claimants submitted that the opt-out principle was not compatible with EU law on the grounds that it did not provide an effective remedy for the discrimination to which they had been subjected.
The decision
The exclusion of the part-time workers from the pension scheme was a breach of the equality principle under the Equal Pay Act 1970, but the remedy awarded was at the Court's discretion. In order to be awarded the remedy of compensation for loss of retrospective membership the employees needed to show that, on the balance of probabilities, they would have joined the scheme had they been eligible (so long as the appropriate contributions were paid). The opt-out principle applied by the employer was held to be compatible with EU law as it effectively provided equal treatment to the part-time workers.
What this means for employers
This decision provides some reassurance for employers and indicates that giving affected employees three months in which to join the scheme before refusing to apply retrospective membership rights is reasonable. An employee would have to show that on the balance of probabilities they would have joined the scheme were they eligible to do so. Whilst this is not a clear cut test, the successful claimants in this action were not awarded retrospective membership rights and no penalty was imposed on the employer.
Copple and others v Littlewoods plc and others
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