The Court of Appeal has upheld a decision of the EAT in the combined cases of O’Brien -v- Ministry of Justice and Walker -v- Innospec 2015, holding that subsequent changes to the law could not affect pension entitlements that had already accrued.

In O’Brien, the Claimant was a part-time judge. After the implementation date for the Part Time Workers Directive had passed (7 April 2000), he became entitled to a pension. He argued that his pension entitlement should reflect all of his sitting days since the beginning of his appointment (1 March 1978), not just his sitting days after the implementation date.

The Claimant in Walker had been in a long-term relationship since 1993. He retired in 2003. He and his partner formed a civil partnership in 2006 and they have subsequently married. His pension scheme set out that on his retirement a “surviving spouse” would continue to receive about two thirds of his pension, but his male partner would only receive about £500 per year. This is permitted by a special exception in section 19 of the Equality Act 2010, which Mr Walker sought to challenge.

Although successful at first instance, both claimants were unsuccessful in the EAT, and the Court of Appeal upheld the EAT’s decision. The relevant pension rights had accrued during the period of service before the respective changes in the law. The pension rights could not be acquired retroactively. In Walker, to interpret the clear Equality Act exemption differently would be tantamount to judicial legislation. An argument that the exception was in breach of a fundamental principle of EU law also failed. Lord Justice Underhill noted that Mr Walker might find the decision hard to accept, but that “changes in social attitudes, and the legislation which embodies those changes, cannot fully undo the effects of the past”.