The appellant, a gay man, worked for the respondent from 1980 until his retirement in 2003. Throughout that period, he made regular contributions to the firm’s occupational pension scheme. He lived with his male partner since 1993 and they entered into a civil partnership in 2006 and are now married. The appellant brought a challenge regarding benefits payable to his spouse (under a civil partnership) as the payable benefits from his former employer's pension scheme were restricted so that only service after 5 April 2005 would count for the purposes of calculating any survivor's pension for a same sex spouse or civil partner. If the appellant had a wife, she would be entitled to a two thirds pension if he predeceased her.  However, since his service occurred prior to the law prohibiting discrimination on the ground of sexual orientation, the maximum his partner could hope to receive was around £500 per year. The Supreme Court ruled that the exemption contained in Schedule 9 of the Equality Act 2010 allowing pensionable service prior to 5 December 2005 to be disregarded was incompatible with EU law and the appeal was allowed.

Practical Lessons

This decision follows the principles of recent CJEU cases such as Maruko which concluded that same sex couples are comparable to married couples and it is therefore direct discrimination to treat them less favourably.  While legislative changes normally apply prospectively under both UK and EU law, this presents a challenge to workplace pensions where rights build up over decades. It is foreseeable that affected schemes will need to review their benefit structures concerning same sex spouses and civil partners, as well as retrospectively re-calculating benefits paid already. Trustees and employers will need to check the rules of their own schemes to see whether they have, to date, applied the restriction on same sex survivor benefits. Interestingly, if UK compliance with the Equal Treatment Directive is no longer required post-Brexit, then elements of the Equality Act 2010 could be reversed as part of the legislative review set to take place as part of the European Union (Withdrawal) Bill. Equality, however, is not solely an EU matter and it is unlikely that the government will seek to dramatically alter the status quo.
https://www.supremecourt.uk/cases/uksc-2016-0090.html

Watch Lord Kerr deliver the lead judgment here:
https://www.youtube.com/watch?v=OgJIYRFvHSc