In November 2012, an employment tribunal (ET) decision cast doubt on the Government's implementation of the Equal Treatment Framework Directive (the Directive) through the Equality Act 2010 (EqA 2010).
In Walker v Innospec Ltd and others, Mr Walker, who retired in 2003, claimed that Innospec had discriminated against him as the Scheme provided a spouse's pension to a member's civil partner, but only in relation to service after 5 December 2005.
The employer relied on the exemption in paragraph 18 of Schedule 9 to the EqA 2010 (the Exemption), under which civil partners must be treated in the same way as spouses on the death of a scheme member, but only in respect of pensionable service completed after the Civil Partnership Act 2004 came into force. The ET ruled that the company had directly discriminated against Mr Walker in refusing to provide a spouse's pension for service accrued before 5 December 2005, which was in contravention of the Directive. Further, the Exemption should be interpreted compatibly with the Directive, and it was unlawful for pension schemes to provide anything other than a full survivor's pension for civil partners.
However, this decision was overturned on appeal, with the Employment Appeal Tribunal (EAT) deciding that the Exemption was compatible with the Directive. The EAT considered that it could not be asked to “legislate rather than interpret” so as to conclude that it was incompatible. To do so would be “diametrically opposed to the thrust of the legislation in this particular respect and to the apparent intention of Parliament”.
The appeal was heard in the CA together with that of Mr O’Brien QC. Mr O’Brien was appealing a decision of the EAT that the calculation of his pension should take into account only that part of his service which occurred after the transposition into domestic law of the Part Time Workers Directive on 7 April 2000. This appeal was also unsuccessful.