Supreme Court outlaws pensions discrimination against gay partners

The Supreme Court has struck a ground-breaking blow against discrimination in the case of a gay employee whose husband was denied the right to a full survivor’s pension in the event of his death. The Court’s decision to disapply a discriminatory provision of the Equality Act 2010 underlined the primacy of European law.

The man’s employer had informed him that, if he died before his husband, the latter would be entitled to only the statutory minimum pension of £1,000 per year. Had his spouse been a woman, she would have been due a pension of £47,500 per year. The employer argued that that discriminatory treatment was sanctioned by the exception contained within Paragraph 18 of Schedule 9 of the Act.

That provision states that it is lawful to discriminate against an employee who is in a civil partnership or a same-sex marriage by preventing or restricting them from having access to benefits that accrued before 5 December 2005, the date on which civil partnerships were introduced in the UK. The man’s discrimination complaint was upheld by an Employment Tribunal, but that ruling was reversed by the Employment Appeal Tribunal (EAT). The Court of Appeal agreed with the EAT.

In upholding the man’s appeal, and ruling that the husband enjoyed the same right to a survivor’s pension as a wife would have done, the Court disapplied Paragraph 18 on the basis that it was incompatible with EU Directive 2000/78/EC (the Framework Directive), which bans discrimination on various grounds, including sexual orientation.

The Court noted that, although EU law does not impose a duty on member states to recognise same-sex partnerships, the Court of Justice of the European Union (CJEU) has ruled that, if a status equivalent to marriage is available under national law, it is directly discriminatory for an employer to treat a same-sex partner less favourably than an opposite-sex spouse.

Recent decisions of the CJEU had put the success of the man’s claim beyond doubt. They established that, absent evidence that there would be unacceptable economic or social consequences, there was no reason to treat the man and his husband unequally. The husband was thus entitled to a full survivor’s pension so long as the man pre-deceased him and they remained married on the date of his death. The pension would be calculated on the basis of all the man’s years of service.