Equal pension rights for same-sex couples

Same-sex marriage has been legal in Britain since 2014, but inequality in marriage still hasn’t been completely eliminated.

However, there was a big step forward on this front today as the Supreme Court ruled in favour of John Walker, a retired gay man seeking to ensure that if his husband survived him, he could draw on Walker’s company pension.

Up until now, same-sex couples have been subject to a loophole in the Equalities Act 2010 which prevents some widowed partners from having full access to their partners’ retirement benefits should they outlive them.

Because of the loophole, any money in company pension schemes accrued before 2005 would not be payable to a male widower of a same sex marriage or civil partnership, but would be accessible, for example, to a female widow if her husband died before her.

Using this loophole, Mr Walker’s former employer Innospec argued that, should he die first, it didn’t have to pay his husband any pension accrued before 2005 (the year civil partnerships became legal).

Lawyers from human rights group Liberty argued that this was discrimination against Mr Walker because of his sexuality and that his partner, with whom he has lived since 1993, should be entitled to the full pension of £45,700 a year, rather the statutory minimum £1,000.

The Supreme Court agreed with them, concluding that the loophole in the Equality Act was incompatible with EU anti-discrimination law. This brought to a close a case which has been ongoing since 2012, when Mr Walker first took his former employer to an employment tribunal.

Will this be affected by Brexit?

The government has promised to incorporate European law into British law before our scheduled departure from the EU in 2019. In theory this means that the anti-discrimination law which was key to the Supreme Court’s decision will still be in effect and the decision to close the loophole will remain valid.

However, once EU anti-discrimination regulations become part of UK law, they will be easier for our politicians to amend and change. Representatives of Liberty are clearly concerned about this, as they have called on the government not to reverse this decision after Brexit.

Further information

This was a complex case involving elements of both employment and marital law. To speak to one of our expert employment or family solicitors about issues relating to pensions or same sex relationships, call us on 0117 325 2929 or complete our online contact form.