UK Supreme Court bid for gay pension equality

Liberty client John Walker’s landmark legal battle to secure equal pension benefits for his husband will, if he wins, end the financial penalisation of thousands of same-sex couples in civil partnerships and civil marriages.

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His case is being heard the UK Supreme Court this week. The judgement is likely to be reserved until later this year.

Mr Walker is being represented by Emma Norton of the civil rights watchdog, Liberty.

His legal bid challenges an exemption in the Equality Act that lets employers exclude same-sex partners from spousal benefits paid into a pension fund before December 2005. Liberty and Mr Walker argue this exemption is discriminatory because it does not apply to opposite-sex couples.

According to Liberty:

John Walker retired from chemicals group Innospec in 2003, having worked for the company for more than 20 years. During his employment there, he made the same contributions to the pension scheme as his heterosexual colleagues.

Mr Walker and his husband have been together for 24 years – since 1993. They entered into a civil partnership in January 2006. This was later converted into a marriage.

Relying on the Equality Act exemption, Innospec has made clear that – should Mr Walker die – his husband will not receive the same survivor benefits that he would if he were a woman.

Those benefits will not include the pension contributions Mr Walker made prior to 2005.

When Mr Walker dies, his husband will receive an inherited pension of only £1,000 a year, whereas if he was married to a woman, his wife would be entitled to receive £45,000 a year for the rest of her life.

Innospec’s refusal to agree pension equality is supported by the Department for Work and Pensions.

“By supporting Innospec and opposing pension equality, the government is backing homophobic discrimination against same-sex couples. It undermines the claim that the Conservatives are no longer the nasty party and that they now support LGBT equality. The government could and should remedy this discrimination by legislating equal pension rights,” said human rights campaigner Peter Tatchell.

Liberty notes:

The Supreme Court hearing is Mr Walker’s last legal chance to ensure that, should he die first, his husband will be treated equally and be adequately provided for.

The majority of private occupational pension schemes now treat surviving same-sex spouses as equal to surviving opposite-sex spouses, but the schemes run by Innospec and some other companies do not. Instead, they make use of the exemption in the Equality Act to avoid paying surviving same-sex partners their due pension entitlement.

Represented by Liberty, Mr Walker is arguing that the exemption should be disapplied because such discrimination based on sexual orientation breaches his human rights.
If he is successful, Mr Walker’s challenge will ensure pension equality for thousands of same-sex couples, ending the financial disadvantage suffered by surviving partners.

John Walker said:

“The government should be ashamed that – in 2017 – I and so many others are being forced to live with the worry that our loved ones won’t be provided for when we’re gone, solely because of our sexuality.

“My husband and I have been together for 24 years. During that time, I also gave more than two decades of my life to Innospec, paying in exactly the same amount into the company pension fund as my heterosexual colleagues.

“How can it be right that my husband will get practically nothing but, if I were to divorce him and marry the very first woman I see, she would be immediately entitled to the full spousal pension? It’s not just unfair – it’s absurd.

“For as long as I can remember, successive governments have talked about creating a fairer society – but while this exemption exists, they continue to sanction discrimination and inequality.”

Emma Norton, lawyer at Liberty and acting for Mr Walker, said:

“This is a clear case of discrimination. Mr Walker gave 20 years to his employer and made the same pension contributions as his heterosexual colleagues but – solely because of his sexual orientation – his husband will see nowhere near the same benefits. Many, many others will be suffering the same injustice.

“This archaic loophole has no place in the UK in 2017, and it is disgraceful that the Department for Work and Pensions continues to spend taxpayers’ money fighting to preserve it. There can be no price tag on equality.

“We hope the Supreme Court will drive the law into the twenty-first century and take a huge step towards equal pension rights for same-sex spouses and civil partners.”

Peter Tatchell, human rights campaigner, added:

“This is a very important equality case. It highlights one of the several exemptions in equality law that still disadvantage lesbian, gay, bisexual and transgender people.

“It is appalling that John has to go to court to remedy this clear-cut discrimination against same-sex couples in pension inheritance rules. His partner, and thousands of other LGBT people in a similar situation, will continue to suffer huge financial losses under the current regulations.

“This legal bid is a simple matter of equality and fairness. The surviving partners in same-sex civil partnerships and civil marriages should have the same pension inheritance rights as the surviving spouses in heterosexual marriages.”

This news release is based on a briefing provided by Liberty. Our thanks and appreciation.

Liberty’s briefing on the legal issues:

  1. Mr Walker was successful in the Employment Tribunal in 2012, but that decision was overturned in the Employment Appeal Tribunal (EAT) in 2014 – with the Department for Work and Pensions (DWP) intervening in support of Innospec. The Court of Appeal upheld the EAT’s verdict a year later.
  1. The Civil Partnership Act 2004 came into force on 5 December 2005, enabling same-sex couples for the first time to enter into a legal commitment equivalent to marriage. On the same date an exemption was created to permit employers and pension funds to exclude civil partners from spousal benefits attributable to service prior to 5 December 2005. This exemption is now contained in paragraph 18(1) of Schedule 9 of the Equality Act 2010.
  1. The Marriage (Same Sex Couples) Act 2013 now allows same-sex couples to marry. Couples who had previously entered into a civil partnership can “upgrade” to marriage. However, the Act did not remove the exemption in paragraph 18(1) of Schedule 9; rather it extended it to same-sex married couples.
  1. Traditionally, occupational pension schemes state that when a member dies his or her spouse is entitled to 50 per cent of the value of the pension for the rest of his or her life, regardless of when the couple married. Government research suggests that almost three quarters of occupational pension schemes have voluntarily extended this benefit to employees’ same-sex spouses and civil partners. Public sector pension schemes ensure that surviving same-sex spouses and civil partners are treated at least as well as widowers regardless of retirement date.
  1. The exemption in the Equality Act 2010 potentially affects any employee who:
    1. is a member of an occupational pension scheme which provides benefits for members’ spouses,
    2. has pensionable service prior to 5 December 2005, and
    3. is in a same-sex marriage or civil partnership.