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On appeal from [2015] EWCA Civ 1000.

This appeal considered whether a male employee is entitled to require a pension fund to pay a surviving spouse’s pension to his civil partner or husband on the same basis that such a pension would be payable if he were married to a woman. The respondent had refused to pay the appellant’s spouse’s pension because it predated 5 Dec 2005, the date that civil partnerships were introduced in the UK, and under the Equality Act 2010, Sch 9, para 18 any discriminatory treatment in terms of rights accrued was permitted prior to this date.

The Supreme Court unanimously allowed the appeal and made a declaration that Sch 9, para 18 was incompatible with EU law and must be disapplied. It was held that the appellant’s husband was entitled on his death to a spouse’s pension, provided that they remain married. Under the EU Directive 2000/78/EC, member states are required to prohibit discrimination in employment on various grounds including sexual orientation and the deadline for transposing this into domestic law was in 2003. The Court referred to two CJEU decisions (Maruko v Versorgungsanstalt der Deutschen Bühnen (C-267/06) and Römer v Freie und Hansestadt Hamburg (C-147/08)), which confirmed that unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to the deceased’s entitlement to a survivor’s pension for his husband, at the time that this pension would fall due, there was no reason that he should be subjected to unequal treatment as to the payment of that pension.

For judgment, please download: [2017] UKSC 47
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (8 Mar 2017 morning session) (8 Mar 2017 afternoon session) (9 Mar 2017 morning session) (9 Mar 2017 afternoon session)