Same-sex married couple has failed to persuade a Court that discrimination against them was illegal after equal pension rights decision.
A same-sex married couple has failed to persuade a Court that the discrimination against them was illegal.
John Walker and his husband had lived together for 20 years. They had become Civil Partners just as soon as the law made that possible, and then converted their Civil Partnership to marriage after another change in the law let them do so.
Mr Walker was 62 and had retired in 2003 from the company where he had worked for 23 years. His company pension was worth £85,000 per year and he wanted to ensure that his husband, only 49 years old, would benefit from the pension if Mr Walker died first.
There was never any doubt that Mr Walker’s spouse, if he had married a woman, would have been entitled to the pension, but the company, Innospec Ltd, refused to recognise his marriage to a man in the same way.
The story will surprise many readers, but the point was that discrimination on the basis of sexual orientation only became illegal shortly after John Walker had retired. He challenged the ruling at an Employment Tribunal and was successful. He must have thought that the pension problem was solved. But the company, supported by the Department of Work & Pensions, appealed the decision and the Employment Appeal Tribunal reversed it.
Mr Walker took it further – he was supported by the Human Rights group, Liberty – and appealed the decision to the Court of Appeal where he has now lost again. The reasoning is simple, if brutal – it is now illegal to discriminate in this way but because John Walker had retired before the law made it illegal, the company was not bound to treat him in the same way as it would have treated a heterosexual couple.
The Court said,
‘…. I can understand that Mr Walker and his husband will find this conclusion hard to accept. But changes in social attitudes and the legislation that embodies those changes, cannot fully undo the effects of the past’
We’re all used to the argument that attitudes, jokes and prejudices from a different time should be judged according to the standards of their time. It’s a shaky argument which can be used to justify the unjustifiable, but this case demonstrates that even in the legislative sphere, we cannot view past practices through modern spectacles. In fact, most pension schemes have chosen to treat same-sex couples in the same way as opposite-sex couples, but the Court has told us that they don’t have to.
One final point – why did the Department for Work & Pensions support the company at the Court of Appeal? The answer may have something to do with the fact that, according to the government, full equalization would cost over £3 billion.
