In Innospec Ltd and others v Walker (UKEAT/2014/0232), the Employment Appeal Tribunal (EAT) heard an appeal against a decision of the employment tribunal  concerning the compatibility of a provision under the Equality Act 2010 (the Act) with the EU  Directive establishing a general framework for equal treatment in employment and occupation.

The Act brings into domestic law the EU requirement to treat civil partners and spouses equally in relation to the provision of benefits  under occupational pension schemes. However, the Act contains a provision that confirms that the  equal treatment requirement is not contravened if the benefits payable  to civil partners are  restricted to the extent they are attributable to periods of service prior to 5 December 2005,  being the date on which the Civil Partnership Act 2004 came into force. The employment tribunal  upheld Mr Walker’s claim that a failure to provide survivors’ benefits to those in a civil  partnership in respect of service prior to 5 December 2005 constituted unlawful discrimination on  the grounds of sexual orientation and that the provisions of the Act that permitted this were  incompatible with the EU Directive.

The EAT upheld Innospec’s appeal on the grounds that the EU Directive does not purport to have  retrospective effect and therefore should not be construed as conferring a right to benefits in  respect of the period prior to the latest date on which the EU Directive was to be transposed where  one did not exist before, nor is it contrary to the Directive to leave past discrimination  un-remedied. Accordingly the relevant provision of the Act was compatible with the Directive, meaning that it continues to be permissible for pension schemes to restrict the calculation of pensions for surviving civil partners to the period of the member’s service on and after 5 December 2005. For further information, please contact Kate Buckham.