In the case of R (on the application of Cockburn) v Secretary of State for Health, the High Court has ruled that a provision of the NHS Pension Scheme Regulations 1995, which treated men differently from women, can be objectively justified under the European Convention on Human Rights (ECHR).
The claimant's challenge related to a provision of the regulations regarding his entitlement to a widower's pension. The effect of the regulations was that his late wife's service prior to 6 April 1988 (she joined the NHS pension scheme in 1982) was discounted. It was accepted that these years of service would not have been discounted had the claimant been a woman applying for entitlement to a late husband's pension.
The claimant relied on Article 14 of the ECHR, which contains a prohibition against discrimination. The High Court considered the justification for the discriminatory effect of the regulation and upheld its legality. The court considered that the Secretary of State, in enacting the regulations, was entitled to have regard to the costs that removing the discriminatory provision would entail, which would have to be borne by current members of the NHS pension scheme or the taxpayer. These costs were estimated to have been between £730 to £905 million. Further the court found that a number of provisions had been enacted to reduce the discriminatory effect of the regulations, for example, that the claimant could have purchased survivor’s pension cover and members of the scheme could transfer their accrued rights to a new section of the scheme which provided for non-discriminatory pension entitlement.