The Advocate General (A-G) has recently given an opinion in a case brought by a member of an occupational pension scheme in Ireland, that the scheme contained a rule which discriminated against the member, on the basis of his sexual orientation. The A-G found that the scheme rule in question constituted indirect discrimination on the grounds of sexual orientation, as well as direct age discrimination.

The pension scheme rules provided that a spouse’s pension would only be available where a member had married or entered into a civil partnership prior to attaining the age of 60. Under Irish law, civil partnership was not recognised until 2011 and so because of this rule, for homosexual individuals born prior to 1951, their partners could not be eligible for a spouse’s pension under the scheme.

The A-G found that this rule gave rise to indirect discrimination. In the case of heterosexuals, the matter of marriage prior to the age of 60 was dependent on life planning and personal choice. For homosexual scheme members, the timing of marriage or civil partnership was dependent on legality.

The A-G considered whether the rule and discrimination could be objectively justified. She recognised that the age limit was designed to prevent ‘death-bed marriages’; a situation whereby a member enters a marriage later in life to provide survivor benefits to a connected individual, at the expense of the financial stability of the scheme. Although a rule to prohibit this was accepted as appropriate, it was not “necessary” - the objective could be achieved by a more lenient approach, such as the setting of a minimum waiting period between the date of the marriage or civil partnership and the date at which the partner acquired a right to a spouse’s pension. The adverse effect that the rule would have on a particular category of employee was disproportionate to the prevention of abusive behaviour on the part of individual members.

The A-G’s opinion is not binding on the ECJ and it will be interesting to see how the ECJ reacts to it. For UK pension schemes, the opinion highlights the need to be vigilant in setting and operating rules which interact with the legislation surrounding the legalisation of civil partnership and same-sex marriage.