Those of you who live outside the golden triangle that is the North West of England will probably have observed that it is summer.
In a short time, Pensions News (PN) will leave said triangle to go on his annual period of summer leave. Before doing so however, he agreed with his editor that he would try to write an article which was (a) had at least part of a theme which was linked to summer and (b) positive in a way which would reflect the weather or reflect what the weather would be like if Manchester could be relied upon to have summery weather.
PN has never achieved both of the above but, he reasoned, on the basis that Mr Roger Federer managed to defy the odds as well as the laws of science by winning Wimbledon at the grand old age of 35 (Note: Mr Federer is "old" only in sporting terms - PN would give a lot to be 35 again), PN felt he should at least have a go.
Back to Wimbledon and Mr Federer. Mr Federer has managed to win a tournament which few people would have said he had any right to win 12 months ago. He has also, according to one of his trainers, managed to re-achieve the status of men’s singles Wimbledon champion for a historic eighth time by following a training regime which has not focused on or even involved weight training. This is particularly remarkable at a time when many tennis players are almost as well known for the size of their biceps as they are for being superb tennis players. The male players are the same apparently. As well as being impressed by the standard of the tennis and the outcomes of the tennis matches, PN has been impressed by the "other" championship that takes place within the tournament; that which is played out by the commentators.
These particular championships were won, in PN’s view anyway, by Martina Navratilova and John McEnroe; in each case, not for the first time. As PN’s inspiration, Mr Clive James, noticed some years ago, the commentary hit its peak again in 2017 on those days when John McEnroe and Martina Navratilova were talking. Those two are so interesting when they talk about tennis (and not just tennis) that they scarcely need to be accompanied by an actual tennis match. In their playing heydays, both Martina Navratilova and John McEnroe played tennis to the highest standard and, even given their relatively advanced years, they play well enough today to play competitively - albeit on the veterans' circuits. Both sometimes argued with the umpire although when Martina Navratilova did it, she did not do it on the volcanic scale that John McEnroe managed to on a consistent basis. According to McEnroe, he did this in the knowledge and with the full support of his sponsors.
It is fascinating to listen to each individual talk on the BBC and, in McEnroe's case, a good deal quieter than watching him when he played tennis at Wimbledon. Both individuals have ceased to be world champion tennis players but they have dominated the circuit for some years as world champion commentators to the point where they have become philosophers. It was McEnroe, for instance, who PN first heard use the expression “close but no cigar” to describe a shot, played during a men’s singles’ match, which landed marginally out. It was McEnroe also who first used the expression (in broadcasting at least) "a step slow" to describe the effects of time on one former champion's performances. Since then, PN has heard McEnroe and other commentators explain that X or Y has “lost a step” to describe the gradual erosion of the player's speed and agility. That phrase wasn’t needed in relation to Mr Federer this year but it was used about other players and has been used quite a lot by PN himself to explain how, for instance, he didn't quite catch the jar that was falling from the shelf in the kitchen or catch the train that he had given himself 3 minutes to catch (starting from his desk with the train already approaching platform four at the train station half a mile away). Just as when he was playing, there are still things that McEnroe says which are based on nothing other than his speed off the mark when they ought to have been based on the intelligence which he undoubtedly possesses. His quick-fire, ad hoc assessment, for instance, of Ms Serena William's status within a non-existent, combined, men’s and women's ranking was one which he probably shouldn't have offered; something McEnroe himself acknowledged as part of his interesting and humorous appearance on BBC Radio 4's Desert Island Discs a few days later. To ask him to make the assessment in the first place was, however, probably unfair.
Which subject (I mean “fairness”) brings PN to the pension-related theme of this piece; the Supreme Court has given judgment in favour of the claimant in Walker –v- Innospec Ltd and others (2017). This case revolves around the enactment of European anti-discrimination legislation into English law and, in particular, the rights of a surviving spouse to a pension on the death of that person’s wife or husband (where the wife/ husband was a member of an occupational pension scheme). In summary, the principle of equality between individuals, irrespective of (in this case) sexual orientation has been applied to English law. The legislation which has achieved it (or tried to as PN hopes you will see if you keep reading) is contained within the Civil Partnership Act 2004 (CPA04) which came into force on 5 December 2005. The principles of several areas of anti-discrimination were consolidated into the Equality Act 2010 (EqA10) which, amongst other things, provides that the equal treatment as envisaged under CPA04 applies to pension schemes with effect from 5 December 2005 – the date CPA04 came into force. So; CPA04 allows same-sex partners to enter into civil partnership and registered civil partners must be treated by occupational pension schemes in the same way as (heterosexual) spouses on the death of a member – in relation to pensionable service from 5 December 2005.
The issue as regards Mr Walker was that he had worked for Innospec Ltd between 1980 and 2003. Clearly therefore, all his pensionable service pre-dated 5 December 2005 meaning that the rules of “his” pension scheme gave his male partner the right to a pension based on Mr Walker’s contracted-out rights (only) under that scheme’s rules. The reader will be relieved to read that, for the purposes of this article (only), he/ she can brush over the part about “contracted-out rights”. The significant consequence of the last statement is that the value of Mr Walker’s contracted-out rights as far as his partner was concerned equated to an annual pension of approximately £1,000. Mr Walker argued that, had his spouse been female, she would have been entitled to a pension based on his (vis. Mr Walker’s) full pensionable service. In short, if “she” outlived Mr Walker, “she” would be entitled to a pension in excess of £40,000 per annum. The scheme, Mr Walker argued, discriminated against him and his partner directly and indirectly on grounds of sexual orientation.
The reader will appreciate that this particular case began in 2012. It went through the employment tribunal, the employment appeals tribunal, the Court of Appeal and, as indicated above, the Supreme Court. The process of going the distance in legal terms can be lengthy. Ruling in Mr Walker’s favour, the Supreme Court held that the provisions within EqA10, which permitted scheme rules to disregard members’ service before 5 December 2005, contravened the European framework directive in which it was required that the principles of equality be transposed into the laws of member states. Put differently, the English legislators ought to have applied equality in a wider sense and not applied it with effect from 5 December 2005.
For pension schemes up and down the country, the judgment is likely to require a re-think and a re-calculation of liabilities - where those schemes have members who are same-sex unions. In many ways therefore, the judgment will not be welcomed by administrators of schemes or, more to the point, by entities responsible for funding those schemes. There is a wider, non-financial point however. It is that the Courts have now confirmed that equality should apply in a wider and more general sense and not with effect from a particular date – being the date from which it was formally acknowledged that the principles of equality, which had probably always been there in some form, should be enforceable by law. The decision is, according to one update PN read (in PLC in case you, the reader, are interested), of particular significance to public service pension schemes which, according to a report prepared by the Department of Work and Pensions, concluded that equalisation between the sexes as well as based on sexual orientation could cost approximately £2.9 billion. The human rights organisation, Liberty, put it differently. It said that the judgment could “dramatically change the lives of thousands of same-sex couples”.
And so, having started with McEnroe and moved onto fairness and then “Liberty”, we can finish with fairness and Martina Navratilova; a strong solid woman of integrity, proud not to be heterosexual. It was Martina who, a few years ago, dealt with the debate about the fairness (or not) in relation to tennis players who grunt when they are hitting the ball. The debate had dragged on some time with no clear conclusion until Martina Navratilova got involved. Since then, the debate has seemed muted at best. Male and female players had grunted as they had hit the ball for several years. Jimmy Connors did it, Monica Seles did it and now a lot of others do it including Ms Maria Sharapova, Mr Raphael Nadal and, PN noticed, both of the athletes who competed in the women's final in this year’s tournament; Ms Venus Williams and the eventual champion, Ms Garbine Muguruza. There were various explanations as to why players grunted as they hit the ball and Martina was asked for her view. She explained how the noise of a grunt from one player meant that his or her opponent could not hear the ball as it hit the tennis racket. The grunter was, therefore, depriving his/ her opponent of an important piece of information and the practice was, therefore, unfair. When it was put to Martina that perhaps some players couldn’t help but grunt, she countered that if Federer didn’t need to grunt then nobody did. And, indeed, the 2017 Wimbledon Champion does not grunt. Amongst all the hyperbole and praise which have rightly greeted his eight title, the point has been easy to miss. Lots of players grunt, some more than others but Federer doesn’t do it, so nobody needs to. The case is closed. Martina Navratilova; philosopher and potential Supreme Court judge but I suppose we will have to wait until Wimbledon and the summer of 2018 for more of the same.
Until next time........................