UK: What Does The ECJ's Latest Decision Mean For Same-Sex Members In UK Pensions Schemes?

The European Union's Court of Justice (ECJ) has given its decision in the case of Parris v Trinity College Dublin. What does this European case mean for UK pension schemes? We consider the impact on age exemptions for otherwise discriminatory rules and examine whether it changes the position in respect of same-sex members' benefits. Finally, we'll look at what impact this decision will have when the Supreme Court hears Walker v Innospec & ors next year.

Key points

1 The ECJ decided not to follow the opinion of the advocate general

The European Union's Court of Justice (ECJ) has ruled that a provision in an Irish pension scheme that limited survivor's benefits to those marriages or civil partnerships entered into before the member reached age 60 or retirement did not constitute discrimination on grounds of sexual orientation or age.

2 No discrimination on grounds of sexual orientation

The ECJ found that there was neither direct nor indirect discrimination on grounds of sexual orientation.

3 Age discriminatory rule was permitted under age exemptions

The ECJ found that there was direct age discrimination, but that the age exemptions in Directive 2000/78/EC (the Equal Treatment Framework Directive) applied to permit the discriminatory provision in the scheme's rules.

4 The ECJ decision will be taken into account by the Supreme Court when it considers Walker v Innospec & ors next year

The UK's Supreme Court will look at similar issues when it considers Walker v Innospec & ors in March 2017. The ECJ's ruling makes it less likely that the Supreme Court will overturn the Court of Appeal's decision (which held that the pension benefits for surviving same sex couples cannot be claimed retrospectively prior to the date the relevant legislation came into force). Trustees of UK pension schemes who want more certainty should, however, wait until the Supreme Court's decision is issued before taking any action.

What was the case about?

Mr Parris was a lecturer at Trinity College Dublin. He was also a member of the university's pension scheme. Mr Parris retired from service at the end of 2010. He was, at the point of retirement, aged 64.

Under the scheme's rules, a member's spouse or civil partner is entitled to the payment of a survivor's pension if the member dies before the spouse of civil partner. The survivor's pension is, however, only payable if the member married or entered into a civil partnership before:

  • reaching age 60; or
  • retirement

Mr Parris lived in a stable relationship for over 30 years with his same-sex partner. Mr Parris and his partner entered into a civil partnership in the UK in 2009.

Same-sex partnerships were only made possible in Ireland on and from 1 January 2011. Overseas same-sex partnerships were recognised with effect on and from 12 January 2011.

These dates were after Mr Parris reached age 60 and after Mr Parris had retired. It was therefore impossible for Mr Parris and his partner to meet the requirement in the pension scheme rules. Mr Parris's request for a survivor's pension for his partner was therefore rejected.

Mr Parris appealed this decision and, when the rejection was confirmed, began legal proceedings which culminated in the ECJ judgment. The ECJ was asked by the Irish Labour Court to give a preliminary ruling on three questions:

  1. Did the pension scheme's rule on survivor's benefits constitute discrimination on grounds of sexual orientation?
  2. Did the pension scheme's rule on survivor's benefits constitute discrimination on grounds of age?
  3. Did the pension scheme's rule on survivor's benefits constitute discrimination on grounds of sexual orientation in conjunction with age?

What is the legal framework?

The case centres on the Equal Treatment Framework Directive. The Directive established the EU's framework for non-discrimination and equal treatment in employment law.

In the UK, the Directive is put into effect by the Equality Act 2010.

What was the ECJ's judgment?

The ECJ said no to each of the three questions. In doing so, the ECJ rejected the opinion of the Attorney-General on this case, who had found that scheme's rule was indirectly discriminatory on grounds of sexual orientation and directly discriminatory on grounds of age.

Discrimination on grounds of sexual orientation

The ECJ found that the pension scheme's rule on survivor's benefits did not constitute discrimination on grounds of sexual orientation.

The rule applied equally to same-sex and opposite-sex relationships. There was, therefore, no direct discrimination.

The reason that the rule had such a dramatic impact on same-sex members was not because of the scheme's rules. It was because Ireland did not, at the relevant time, recognise any form of civil partnership or marriage for same-sex couples.

In finding that there was no indirect discrimination, the ECJ placed emphasis on recital 22 of the Equal Treatment Framework Directive. This expressly stated that the Equal Treatment Framework Directive was without prejudice to national laws on marital status and the benefits dependent on marital status.

The ECJ found that member states are not required by EU law:

  • to provide legally recognised same-sex partnership or marriage;
  • to give retrospective effect to any laws that they do enact which provide for legally recognised same-sex partnership or marriage; or
  • to law down transitional measures to deal with benefits arising from marital status.

When applied to this legal framework, the ECJ concluded that the scheme's rules did not produce indirect discrimination on grounds of sexual orientation under the Equal Treatment Framework Directive.

Discrimination on grounds of age

Both the Attorney General and the ECJ found that the scheme's rule constituted direct discrimination on grounds of age.

The ECJ, however, decided that the scheme's rule did not amount to age discrimination because of exemptions that apply in respect of age discrimination and pension schemes.

The Equal Treatment Framework Directive provides a range of exemptions that permit occupational pension schemes to be legally structured in ways which would otherwise constitute age discrimination.

Unlike the Attorney General, however, the ECJ decided that the pension scheme's rule fell into one of the permitted exemptions for otherwise age discriminatory provisions (i.e. setting criteria which limits admission to or entitlement to old age benefits under the scheme by reference to employees' ages).

Because the exemption applied, there was no direct or indirect age discrimination in this case.

Discrimination on combined grounds of sexual orientation and age

The ECJ found that there was no new category of discrimination.

In cases such as this (where there has been no discrimination on any of the standard protected characteristics), the ECJ was unwilling to conclude that a combination of more than one of the possible strands of discrimination (e.g. sexual orientation and age) could produce grounds for a successful claim.

What does this mean for UK pension schemes?

One of the reasons that this European case has been closely followed in the UK is its similarity with the case of Walker v Innospec & ors (2015).

In its 2015 ruling on Walker v Innospec & ors, the Court of Appeal decided that legislation which is intended to protect employees under anti-discrimination legislation cannot be relied upon to extend such protection to a period of time before the date the legislation was introduced.

The case will be heard on appeal before the UK's Supreme Court in March 2017.

The ECJ's decision in Parris v Trinity College Dublin makes it more likely that the Court of Appeal's decision and therefore the status quo will be preserved.

Attention in the media

The Parris v Trinity College Dublin case received a lot of attention in the media. In fact, pensions made front page news with alarming regularity in 2016. High profile insolvencies brought an intense level of political, media and public scrutiny on commercial transactions, trustee decisions and the regulatory framework.

Following the BHS and British Steel cases in particular, trustees, employers and their advisers have been left with far more questions than answers:

  • Will BHS, British Steel and Halcrow change approaches to corporate transactions and liability management?
  • How will the regulatory landscape change in the coming year, and what impact will this have on your scheme?
  • How can employers and trustees work together more effectively to deliver sustainable solutions?
  • Does the pensions industry have the tools and expertise to help businesses manage their pension liabilities?
  • What steps can you take to avoid your scheme becoming front page news in 2017?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
3 Oct 2017, Seminar, London, UK

Join us over breakfast for our third retail-focused seminar.

10 Oct 2017, Other, London, UK

Join us for our Real Estate Sector Next Generation networking drinks evening.

12 Oct 2017, Webinar, Birmingham, UK

Join us for an interactive evening exploring the possibilities of implementing digital construction in real life projects.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.