An end to pension inequality for married and civil partnered same sex couples?

April 7, 2017

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In this blog, Ann Northover consultant solicitor with Family Law in Partnership examines the implications of the recent Supreme Court case of Walker v Innospec [UKSC 2016/0090]

The case of Walker v Innospec [UKSC 2016/0090] was heard in the Supreme Court on 8th and 9th March, by Lady Hale, Lord Kerr, Lord Reed, Lord Carnwath and Lord Hughes. Judgment is awaited.

This is the culmination of Mr Walker’s initially successful legal action in the Employment Tribunal based on discrimination, followed by Innospec’s successful appeal to the Employment Appeal Tribunal, which was then upheld by the Court of Appeal.

The issue: Whether a male employee (Mr Walker) is entitled to require a pension fund to pay a surviving spouse’s pension to his civil partner or husband on the same basis that such a pension would be payable if he were married to a woman.

The awaited decision will interest same sex couples who are married or civilly partnered, family lawyers, financial planners, employers and pension trustees, be it regarding survivor’s pension or pension shares on divorce or dissolution.

The Civil Partnership Act 2004 (“CPA”) came into force on 5 December 2005. Same sex marriage was introduced by the Marriage (Same Sex Couples) Act 2013, the first marriages taking effect on 29 March 2014. Mr Walker and his partner registered a civil partnership on 23 January 2006 and subsequently also married.

Mr Walker worked for Innospec Ltd from January 1980 until his retirement on 31 March 2003. The rules of the pension scheme allow for payment of a pension to a surviving spouse. However, Innospec informed Mr Walker that, for the purposes of the surviving spouse’s pension, he and his partner would only be treated as a married couple from 5 December 2005, as being the date the CPA came into effect. Is this discrimination? In short, not as we stand at present.

The EU Equal Treatment Framework Directive (2000/78/EC) prohibits discrimination on grounds of sexual orientation. The Equality Act 2010 requires occupational pension schemes to be non-discriminatory against members based on sexual orientation. However, there is no retroactive effect to this and there is a relevant exemption in Schedule 9, Part 3, paragraph 18, so that discrimination based on sexual orientation does not occur if benefits payable in same sex partnership or marriage are restricted for the period of accrual relating to service pre 5 December 2005.

The financial implication is huge for Mr Walker. The survivor’s pension offered to Mr Walker’s husband by Innospec is £500 per annum. Were he to have a wife instead of a husband, it would amount to £41,000 per annum.

The judgement of the Supreme Court is awaited with interest.

Ann Northover is a highly regarded family law specialist. Ann’s expertise in family law derives from over 20 years in practice, and she is known for her astute and incisive yet sensitive approach to resolving her client’s issues in the context of the needs of the wider family. The focus of Ann’s practice is on complex relationship issues, with particular emphasis on the finances and the wellbeing of and arrangements for any children affected. View Ann’s website profile here or contact Ann at E: an@flip.co.uk or T: 020 7420 5000.