Overturning an earlier Court of Appeal decision (see our article in our previous pensions publication here), the Supreme Court made a historic ruling, on 12 July, in the case of Walker v Innospec (Walker v Innospec Ltd and others [2017] UKSC 47). It decided that an exemption in the Equality Act 2010 which meant that occupational pension schemes did not have to provide the same survivors’ benefits to same sex married partners as they did to heterosexual married couples with respect to pensionable service before 5 December 2005 was incompatible with EU anti discrimination legislation (EU 2000/7/8 EC) (’ the Framework Directive’) and so must be disapplied. Therefore, the claimant Mr Walker’s same sex married partner will, provided he is still married to Mr Walker at date of death, be entitled to survivors’ benefits based on all of Mr Walker’s pensionable service in the scheme, not just accrual from 5 December 2005.*

In the light of this decision, employers with occupational pension schemes should review the survivors’ benefits that their schemes provide and liaise with the pension scheme trustees to ensure that both same sex and heterosexual married couples are treated consistently in relation to those (subject to the comments below about contracted-out service). Where appropriate, the scheme actuary should be consulted about the funding impact (if any) on the scheme as a result of implementing this treatment. Scheme rules should be checked as well as scheme communications to ensure they reflect the equal treatment required, and HR departments should be prepared to answer queries on the subject from scheme members. 

*note the position is different in relation to contracted-out benefits because surviving civil partners/ same sex spouses are already entitled to those which accrued from April 1988.