Pension schemes that provide the statutory minimum survivor benefits for civil partners and same-sex spouses will need to review their rules in light of today’s judgment handed down by the Supreme Court in the case of Walker v Innospec.

The effect of the Supreme Court ruling is that civil partners and same-sex married partners have a right to claim for equal treatment with opposite-sex married partners for spouses’ pensions in respect of all of the service that their partner has accrued in the relevant scheme, rather than only post-December 2005 service.

UK legislation had permitted an exception from equal treatment for same sex partner survivor benefits in respect of service in pension schemes before 5 December 2005. The Supreme Court has declared this exemption to be incompatible with European anti-discrimination protection for same-sex partners, and declared that it should be disapplied. In doing so the Supreme Court overturned the earlier decision of the Court of Appeal.

In coming to its decision, the Supreme Court decided that the point of unequal treatment for Mr Walker and his spouse occurs at the time that the spouse’s pension falls to be paid, rather than at the point that each year of service in the scheme was accrued. On that basis, the Supreme Court’s view was that recognising a right for a same sex civil partner or spouse to be paid a full spouse’s pension today based on all service in the scheme, does not amount to retrospective application of anti-discrimination protection legislation.

The decision will have implications for pension schemes that have not fully equalised survivor benefits for same-sex partners, including for public sector pension schemes. The case could also raise interesting questions about the legality of a similar exemption in respect of age discrimination, where UK legislation states that age discrimination protections do not apply in relation to pensions for periods of service before 1 December 2006.