On 24 November 2016, the Court of Justice of the European Union (CJEU) issued its judgment in Parris v Trinity College Dublin and others (Case C-443/15). The CJEU considered the legality of a rule in an Irish pension scheme that denied a survivor’s pension to a same-sex partner who had entered into a civil partnership after age 60 (civil partnership had not been recognised under Irish law before the member turned 60). It decided the rule was not discriminatory on grounds of age, sexual orientation or a combination of both.
Mr Parris was a lecturer at Trinity College Dublin and a member of its defined benefit pension scheme (the Scheme). He had lived with his same-sex partner for more than 30 years and entered into a civil partnership in the UK in 2009. His civil partnership was subsequently recognised (prospectively) in Ireland when civil partnership became lawful there in January 2011 – he was 64 years old at that time.
The rules of the Scheme provided for surviving spouses or civil partners to receive a two-thirds pension for life except where the marriage or civil partnership had been entered into after the member reached age 60 (the Survivor Rule). As Mr Parris had been over age 60 when he entered into a civil partnership, his partner was not entitled on his death to this pension.
Mr Parris argued that it was not possible for him to comply with the Survivor Rule because civil partnership was not recognised under Irish law until January 2011, after he turned 60. When his claim for a full survivor’s pension for his partner came before the Irish Labour Court, it referred three questions to the CJEU. It asked whether the Survivor Rule was directly or indirectly discriminatory (contrary to the EU Equal Treatment Directive (2000/78)) on grounds of: (1) sexual orientation, (2) age, or (3) if neither age nor sexual orientation in isolation, the combined effect of both.
The Advocate General (AG), who gives legal opinions in advance to assist the CJEU, supported Mr Parris’ case. She considered that the Survivor Rule was both indirectly discriminatory on grounds of sexual orientation and directly age discriminatory. Unusually, she also thought that there may have been discrimination on the combined grounds of age and sexual orientation. Of potentially even wider application were her comments around “temporal limitation” – she felt that there was no need to restrict the effect of such a judgment in relation to past periods.
The CJEU judgment
The judgment did not follow the AG’s opinion and found against Mr Parris on all three questions. The conclusions of the CJEU are summarised below.
(1) Is the Survivor Rule discriminatory on the ground of sexual orientation?
No. The court said it was “worded neutrally” in that it excluded heterosexual and homosexual partners, without distinction, from receiving a survivor’s pension where the marriage or civil partnership was not entered into before age 60. The fact that Mr Parris is unable to satisfy a condition is due to the state of the law in Ireland at the time of his 60th birthday and the absence of transitional provisions under the Survivor Rule.
Recital 22 of the Equal Treatment Directive says “[t]his Directive is without prejudice to national laws on marital status and the benefits dependent thereon”. Member states, according to the court, are “free to provide or not provide for marriage for persons of the same sex or an alternative form of legal recognition of their relationship, and, if they do so provide, to lay down the date from which such a marriage or alternative form is to have effect”. Crucially, the court said the Equal Treatment Directive did not require Ireland or the Scheme “to give retrospective effect to the Civil Partnership Act … nor, as regards the survivor’s benefit at issue in the main proceedings, to lay down transitional measures for same-sex couples in which the member of the scheme had already reached the age of 60”.
(2) Is the Survivor Rule age discriminatory?
No. The fact that it was not possible for Mr Parris to enter into a civil partnership before reaching age 60 was not considered to constitute age discrimination, since, as noted above, that was merely a consequence of the fact that, on his 60th birthday, national law did not provide for any form of civil partnership for same-sex couples. And “EU law did not preclude that state of national law”.
(3) Is the Survivor Rule discriminatory as a result of the combined effect of sexual orientation and age?
No. Where a rule does not constitute discrimination either on the ground of sexual orientation or on the ground of age taken in isolation there is “no new category of discrimination resulting from the combination of more than one of those grounds”.
The CJEU is not obliged to follow an AG’s opinion, though it often does so. It is notable that the court declined to follow the AG’s opinion here, instead coming down against Mr Parris on all three questions raised. That the concept of “combined effect” discrimination did not find favour with the CJEU will come as a relief to employers and pension scheme trustees, who may have found it difficult to address such a nebulous new principle with any degree of certainty. It will also be of some comfort that the court did not echo the AG’s comments around “temporal limitation” (she had suggested there was no need to restrict the effect of the judgment in relation to past periods).
The next high profile UK case due to consider survivor’s pension benefits for same-sex partners in light of the anti-discrimination provisions of the Equal Treatment Directive will be the appeal in Walker v Innospec (in which Eversheds acts for Innospec), which his is due to be heard by the Supreme Court in March 2017. The Innospec case looks at a scheme where the spouse's pension payable to a surviving civil partner is restricted so that it reflects only the period of the member's pensionable service since 5 December 2005, the date on which the Civil Partnership Act 2004 came into force. (Note that the Equal Treatment Directive will continue to apply in respect of periods before the UK leaves the EU and, based on current information, we would expect the same or very similar anti-discrimination principles to continue to apply post-Brexit.)
The CJEU’s decision in Parris will be of interest to employers and trustees of UK defined benefit schemes that restrict the survivor benefits payable to civil partners and/or same-sex married spouses. However, the outcome of the Supreme Court case in Innospec is likely to be of more direct relevance (as death benefit restrictions such as that in the Innospec scheme are more common in the UK). Parris does not address precisely the same sort of scheme rule as Innospec but there are certainly strong parallels and Parris would seem to provide some support to the argument that such rules are not contrary to discrimination law.