The Court of Appeal has decided that it is permissible for a pension scheme to provide a spouse’s pension to a civil partner in relation to pensionable service accrued on or after 5 December 2005 only.

The decision is the latest development in the case of Walker v Innospec which began with an Employment Tribunal finding that:

  • it was discriminatory to refuse to provide a full spouse’s pension to a member’s civil partner; and
  • the exemption in the Equality Act 2010 allowing pension schemes to provide civil partners with survivors’ benefits only in respect of pension accrued from 5 December 2005 was in breach of the EC Equal Treatment Directive.

This decision was overturned in the Employment Appeals Tribunal which decided that the EC Equal Treatment Directive did not require schemes to provide survivors’ benefits in respect of pensionable service accrued prior to the introduction of civil partnerships (that is, 5 December 2005).

Mr Walker subsequently appealed to the Court of Appeal. In its judgment, published yesterday, the Court dismissed the appeal. Having considered the arguments put forward, the judges decided that they were not sufficient to challenge “the basic principle that the law cannot be changed retrospectively”. Whilst they accept that Mr Walker and his partner (who have now married) will find this conclusion hard to accept, “changes in social attitudes, and the legislation which embodies those changes, cannot fully undo the effects of the past”.  The Court also declined to refer the case to the European Court of Justice.

Whilst employers and trustees may breathe a sigh of relief that the judgment has not resulted in additional liabilities for their schemes, this is not necessarily the end of the matter. Under the Marriage (Same Sex Couples) Act 2013, the Government had to carry out a review of the differences in survivors’ benefits under occupational pension schemes and the reliance on the exemption previously mentioned (which was adopted for same-sex married couples also). In the report on the outcome of the review, published in June 2014, the Government stated that it would consider the review’s findings "very carefully" before making a decision on whether the law should be changed. It may be that it has been awaiting the decision of the Court of Appeal before deciding on what course of action to take.

It should also be remembered that further legal proceedings are possible.