Unequal Same-Sex Survivor’s Pensions: The EWCA Refuses to Apply CJEU Precedents or Refer

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1. INTRODUCTION

In a 2014 ILJ note, ¹ I argued that two judgments of the Court of Justice of the European Union (CJEU), Maruko and Römer , ² require that lesbian and gay employees be given the same credit for contributions to their pension schemes (when calculating the amount of a survivor’s pension) as heterosexual employees, regardless of when those contributions were made. Because EU law permits certain direct discrimination with regard to survivor’s pensions (but only if it is based on sex, not sexual orientation), ‘the same credit’ might mean, for some pension schemes, the same as a heterosexual man (with a surviving female spouse) in the case of a lesbian employee (with a surviving female spouse or civil partner), or the same as a heterosexual woman (with a surviving male spouse) in the case of a gay employee (with a surviving male spouse or civil partner). ³ But Great Britain’s blanket exception, permitting employers to discriminate directly on the ground of sexual orientation (hereinafter, ‘Paragraph 18’), ⁴ by ignoring all pension contributions made before 5 December 2005 by an employee with a same-sex civil partner or spouse, is clearly contrary to EU law. ⁵ In Walker v Innospec , the only options for the England and Wales Court of Appeal (EWCA) were therefore to make a reference to the CJEU, if it had a reasonable doubt about the application of Maruko and Römer to the facts of Walker , or to reverse the judgment of the Employment Appeal Tribunal (EAT).