Today the Supreme Court unanimously allowed an appeal by John Walker against his employer’s refusal to permit his husband and former civil partner to enjoy the same pension rights as if his spouse were of the opposite sex.
His employer, Innospec Ltd, refused because his service predated 5th December 2005, the date that civil partnerships were introduced in the UK, and any discriminatory treatment is therefore permitted under paragraph 18 of Schedule 9 to the Equality Act 2010. This provides that it is lawful to discriminate against an employee who is in a civil partnership or same-sex marriage by preventing or restricting them from having access to a benefit, facility or service the right to which accrued before 5th December 2005 or which is payable in respect of periods of service before that date. If Mr Walker was married to a woman (or indeed if he married a woman in the future) she would be entitled on his death to a “spouse’s pension” of about £45,700 per annum. As things stood at present, Mr Walker’s husband would only be entitled to a pension of about £1,000 per annum (the statutory guaranteed minimum).
Allowing Mr Walker’s appeal, the Supreme Court also made a declaration that paragraph 18 of Schedule 9 to the Equality Act 2010 is incompatible with EU law and must be disapplied.
The European Court of Justice (CJEU) has held that if a status equivalent to marriage is available under national law, it is directly discriminatory contrary to the Framework Directive for an employer to treat a same-sex partner who is in such a partnership less favourably than an opposite-sex spouse. In the UK, Parliament has chosen to recognise same-sex partnerships, first through the introduction of civil partnerships and subsequently through the recognition of same-sex marriage itself.
In any event, two recent decisions of the Grand Chamber of the CJEU concerning the equal treatment rights of same-sex partners to survivor’s pensions put success for Mr Walker’s claim beyond doubt (Case C-267/06 Maruko v Versorgungsanstalt der Deutschen Bühnen and Case C-147/08 Römer v Freie und Hansestadt Hamburg). From these cases, it is clear that, unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to Mr Walker’s entitlement to a survivor’s pension for his husband, at the time that this pension would fall due, there is no reason that he should be subjected to unequal treatment as to the payment of that pension.
Walker (Appellant) v Innospec Limited and others (Respondents)  UKSC 47
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