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Pension inequality ended for same-sex couples

Supreme Court judgment finds Equality Act exemption unlawful

In a landmark judgment the Supreme Court has ruled unanimously that an exemption in the Equality Act 2010 – letting employers exclude same-sex partners from spousal benefits paid into pension funds before December 2005 – is discriminatory and breaches EU equality laws. The ruling means the provision is immediately disapplied and companies taking advantage of the exemption will be breaking the law.

In Walker v Innospec Limited and others [2017] UKSC 47 the appellant, John Walker, has won his legal battle to secure equal pension benefits for his husband in a decision that could benefit thousands of couples across the UK.

It marks the end of a lengthy fight for Mr Walker and Liberty, after an initial Employment Tribunal victory in 2012.

John Walker retired from chemicals group Innospec in 2003, having worked for the company for more than 20 years. During his time there, he was required to pay into its pension scheme. He made the same contributions as his heterosexual colleagues. Mr Walker and his husband have been together since 1993. They entered into a civil partnership in January 2006, having registered on the first day it was legally possible to do so. This was later converted into a marriage.

Relying on the Equality Act exemption in para 18 of Schedule 9, Innospec made clear that – should Mr Walker die – his husband would not receive the same survivor benefits he would if he were a woman. Those benefits would not include all the contributions Mr Walker had made prior to 2005 – leaving his husband with a pension of only a few hundred pounds a year. If he were married to a woman, she would receive £45,000 a year for the rest of her life.

Innospec's position was supported by the Department for Work and Pensions (DWP), which joined the case and led much of the argument against Mr Walker. The DWP argued that same-sex couples in the position of Mr Walker and his husband should not benefit from the same pension arrangements as heterosexual couples.

The Supreme Court's unanimous judgment was given by Lord Kerr. All five justices agreed the loophole was discriminatory and breached EU law.

The judgment finds that the legal status of gay and lesbian employees has been transformed by the introduction of equality legislation from the EU (paragraph 17). Non-discrimination on grounds of sexual orientation is now a principle of EU law. Any denial of a spouse's pension calculated on the basis of all Mr Walker's years of service would be unlawful (paragraph 74). The Equality Act loophole that enables such discrimination is unlawful and must be disapplied. Mr Walker's husband is entitled to a spouse's pension calculated on all the years of Mr Walker's time with Innospec (paragraph 76). Since the European Communities Act 1972, UK courts have had the power to disapply national law where it conflicts with EU law. This will change when the UK leaves the EU.

John Walker said:

"[I]t is to our Government's great shame that it has taken so many years, huge amounts of taxpayers' money and the UK's highest court to drag them into the 21st century. In the years since we started this legal challenge, how many people have spent their final days uncertain about whether their loved one would be looked after? How many people have been left unprovided for, having already suffered the loss of their partner?

"What I would like from Theresa May and her ministers today is a formal commitment that this change will stay on the statute books after Brexit."

Emma Norton, Liberty lawyer acting for Mr Walker, said:

"We are delighted the Supreme Court recognised this pernicious little provision for what it was – discrimination against gay people, pure and simple.

"But this ruling was made under EU law and is a direct consequence of the rights protection the EU gives us. We now risk losing that protection. The Government must promise that there will be no rollback on LGBT rights after Brexit – and commit to fully protecting them in UK law.

"How else can John be sure he and others like him have achieved lasting justice today?"

For the judgment, click here For the Supreme Court's press summary, click here