Gay man loses appeal over husband's pension rights

Updated
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Gavel resting on wood table. Perfect for law firm or auction. Very clean image. Thanks for looking!



A gay man has lost his appeal court bid to win his husband the same pension rights a wife would enjoy if he was in a heterosexual relationship.

Three appeal judges unanimously ruled that the claim brought by ex-cavalry officer John Walker failed because it applied to a period before gay civil partnerships were recognised by the law.

The judges - Lord Dyson, master of the rolls, sitting with Lord Justice Lewison and Lord Justice Underhill - rejected Mr Walker's complaint that he and his partner were victims of discrimination and human rights breaches.

Lord Justice Underhill said: "I can understand that Mr Walker and his husband will find this conclusion hard to accept.

"But changes in social attitudes, and the legislation that embodies those changes, cannot fully undo the effects of the past."

When the case first came before the court, the UK government estimated that "full equalisation" of pension rights would cost around £3.3bn and have complex implications for pension schemes.

Mr Walker, 62, retired from chemicals group Innospec Ltd in 2003 after 23 years' employment.

He began living with his partner, a 49-year old former computer executive, in September 1993 and wants to ensure that, should he die first, his husband will be adequately provided for.

A European Framework Directive on equal treatment required the UK to bring in measures, by December 2 2003, designed to combat discrimination on a number of grounds, including sexual orientation.

The domestic Civil Partnership Act 2004 came into force on December 5 2005, and Mr Walker and his partner registered a civil partnership in January 2006, which was recently converted into a marriage.

His launched legal action against Innospec, arguing it was failing to treat surviving same-sex spouses and civil partners the same as the widows or widowers in heterosexual marriages.

His lawyers said in written submissions to the appeal court that, if he were to dissolve his same-sex partnership and marry a woman, she would be entitled in the event of his death to approximately £41,000 a year.

But the trustees of the Innospec pension scheme would only pay his husband around 1% of that amount.

An employment tribunal in Manchester ruled in 2012 that the Innospec scheme contravened both European Union law and the European convention on human rights.

But last year Innospec appealed to the employment appeal tribunal (EAT) with support from the Department for Work and Pensions (DWP).

Allowing the appeal, the EAT ruled an exemption in the Equality Act 2010 disapplied pension rights accrued by Mr Walker before 5 December 2005 - the date when the Civil Partnership Act 2004 came into force - and required benefits to be provided equally to civil partners and married couples.

The tribunal held those rights did not have retrospective effect or allow inequalities in pay based on sexual orientation prior to that date to be addressed.

Mr Walker's lawyers asked the appeal judges to set aside the EAT ruling on the grounds that it was contrary to the EU equal treatment directive.

Rejecting his plea, Lord Justice Lewision said: "It does not seem to me that the pension trustees can be required to confer on Mr Walker a benefit to which he is not entitled."

The benefit he was claiming was part of his pay earned incrementally during his period of service "at a time when the discriminatory treatment of which he claims was lawful".

The judge said he agreed with the DWP that "the principle of 'no retroactivity' means that the conduct which was lawful when it occurred cannot retroactively become unlawful".



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