The Employment Appeal Tribunal ("EAT") has ruled that the the restriction in the Equality Act which provides that survivors' benefits for civil partners need only be provided in relation to service since 5 December 2005 is lawful.
Mr Walker was employed by Innotec from 1980 until his retirement in 2003. He entered a civil partnership in January 2006. On his death, his partner will be entitled to a pension of about £500 a year (being a survivor's GMP) whereas, if the restriction did not apply, the pension would be over £40,000.
In January 2013 the Employment Tribunal decided that the restriction in the Equality Act is in breach of the EU Equal Treatment Directive and that the failure to provide a survivor's pension equivalent to that which would be provided to a widow (i.e. for the full period of Mr Walker's pensionable service) was both directly and indirectly discriminatory on the grounds of sexual orientation.
The EAT has overruled that decision on the basis that the law is not retrospective: "Where a pension accrues on a discriminatory basis at a time when that discrimination is not unlawful, but it is unlawful at the time the pension comes into payment, the payer is not obliged by law to remedy the past discrimination at the time of payment".
This decision means that the law will stay as it is for the moment and schemes that chose to provide benefits only on the statutory basis can continue to do so for the time being. Schemes must provide survivors' benefits for civil partners on the same basis as for (opposite sex) widows or widowers but only in respect of benefits earned through pensionable service from 5 December 2005. GMP's must be provided on the same basis as for widowers (i.e. in relation to service from 6 April 1988). It is also arguable that statutory reference scheme benefits have to be provided from April 1997 onwards.
The Government is currently reviewing this restriction as part of the new legislation governing same sex marriages. The results of the review are expected by July 2014.
The full judgment of the EAT can be found here.
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