Court of Appeal restricts pension benefits for surviving spouses in same sex partnerships

The Court of Appeal has dismissed Walker v Innospec, an appeal concerning equality of pension entitlements for same sex couples.

Mr Walker worked for Innospec Ltd from January 1980 until his retirement on 31 March 2003. Mr Walker had lived with his male partner since September 1993. He was a member of Innospec’s pension scheme. Under the scheme, a surviving spouse receives a pension for life.

The Civil Partnership Act 2004 came into force on 5 December 2005. Mr Walker and his partner registered a civil partnership on 23 January 2006 and have since married.

Mr Walker argued that pension entitlements accrued before 5 December 2005 required the pension fund to pay a surviving spouse’s pension to his husband. The Court of Appeal held that it did not, and that Mr Walker’s husband did not have an entitlement to a survivor’s pension.

Lord Justice Lewison explained that Mr Walker’s entitlement to benefit was part of his pay that was earned incrementally during his period of service. Lord Lewison relied on the principle of “no retroactivity” meaning that conduct which was lawful when it occurred cannot now become unlawful. Mr Walker’s pension entitlement must be judged by reference to the law in force at the time of his service. At the time of earning the entitlement, the discriminatory treatment of which he now complained was lawful.

Lord Justice Underhill confirmed that the right to pension arises, and becomes fixed, during the currency of the service to which it is referable. At that time, it was a right for a pension to be paid to the employee and to a surviving spouse of the opposite sex. The failure to accord employees in a same sex relationship such rights would not mean a breach of the equal treatment principle at any time up until the introduction of civil partnerships in December 2005. Changes in social attitudes, and the legislation which embodies those changes, cannot fully undo the effects of the past.

A key fact in this case was that Mr Walker retired before the laws about discrimination on grounds of sexual orientation and the Civil Partnership legislation came into force. The requirement to treat civil partners in the same way as spouses on the death of a scheme member only applies to pensionable service completed on and after 5 December 2005.

This judgment will provide Pension Trustees with some relief; so long as the rules related to pension entitlement are lawful during the member’s employment, a future change in equality legislation will not give rise to a retrospective claim.


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