One of the main purposes of the Equality Act 2010 is to consolidate discrimination law, with current statutes and regulations being repealed and a new legislative structure introduced. The previous government indicated that it had no intention of substantively changing discrimination law as it applies to pensions.
The Equality Act starts by indentifying a number of “protected characteristics” (see box) and setting out definitions of discrimination, harassment and victimisation. These key concepts are then applied in specific areas, including pensions.
In an occupational pension scheme all the protected characteristics, other than sex and maternity, are subject to a non-discrimination rule.
The effect of this is that the trustees, managers and employers must not discriminate on the basis of a protected characteristic. It may be possible to justify indirect discrimination (and direct discrimination for age only) and some discriminatory practices are subject to express exemptions (as before). The current age related exemptions are replicated in new regulations. The main change here is that marriage and civil partnership and gender reassignment will now be covered by a non-discrimination rule (the other protected characteristics already are under current legislation).
Gender reassignment should not give rise to too many problems in practice as the new provision will only apply in relation to pensionable service from 1 October and as all schemes should be sex equal by now, a change in gender should not matter for pension purposes (although care must be taken in relation to actuarial and contracting out issues).
In relation to marriage and civil partnerships the Equality Act does not give non-married partners the right to the same benefits as married partners. Essentially it still allows those who are married or in civil partnerships to enjoy benefits not available to those not married or not in civil partnerships. In addition schemes should, since December 2005, be offering the same benefits to civil partners as to spouses so, again, the new provisions should make little difference in practice.
Schemes are also to be treated as including a “sex equality rule” – this is the equivalent to the current equal treatment rule under the Pensions Act 1995. This prevents direct or indirect discrimination on the grounds of sex. The existing time limitations are retained so the provisions apply in relation to scheme admission from 8 April 1976 and in relation to terms of membership from 17 May 1990.
A new “maternity equality rule” requires every occupational pension scheme to treat time while a woman is on maternity leave as it treats time when she is not. This includes terms relating to membership, benefit accrual and contributions. This new provision does not substantively change how women on maternity leave are to be treated for pensions purposes. The Equality Act does not cover paternity, adoption or parental leave and these will continue to be governed by current legislation.