Same sex couple win same pension rights as heterosexuals

In a recent landmark case the Supreme Court has ruled unanimously that an exemption on pension rights in the Equality Act 2010, which allows employers to exclude same sex partners from spousal benefits paid into pension funds before December 2005 is discriminatory and breaches EU equality laws. The ruling means the provision is immediately dis-applied and any company which continues to take advantage of the exemption will be breaking the law.

In Walker v Innospec Limited and others [2017] UKSC 47 the appellant, John Walker, has won his legal battle to secure equal pension benefits for his husband in a decision that could benefit thousands of couples across England and Wales. John Walker retired from chemicals group Innospec in 2003, having worked for the company for more than 20 years. During his time there, he was required to pay into its pension scheme. He made the same contributions as his heterosexual colleagues. Mr Walker and his husband have been together since 1993. They entered into a civil partnership in January 2006 and this was later converted into a marriage.

Relying on the Equality Act exemption Innospec made clear that when Mr Walker passes away his husband would not receive the same survivor benefits under the pension scheme as would a wife whose husband had died in the same circumstances. Mr Walker’s husband would receive a pension of only a few hundred pounds a year as Innospec argued he would only be entitled to pension benefits created by Mr Walker’s contributions to his pension from 2005 onwards (when it became legal for same sex couples to enter into a civil partnership). By contrast if Mr Walker was married to a woman and passed away, she would receive £45,000 a year for the rest of her life. Innospec’s position was supported by the Department for Work and Pensions (DWP), which joined the case and led much of the argument against Mr Walker. The DWP argued that same-sex couples in the position of Mr Walker and his husband should not benefit from the same pension arrangement as heterosexual couples.

The Supreme Court’s unanimous judgment was given by Lord Kerr. All five justices agreed the loophole was discriminatory and breached EU law. The Court found that the legal status of gay and lesbian employees has been transformed by the introduction of equality legislation from the EU. Non-discrimination on grounds of sexual orientation is now a principle of EU law. Any denial of a spouse’s pension calculated on the basis of all Mr Walker’s years of service would be unlawful. The Equality Act loophole that enables such discrimination is unlawful and must be dis-applied. Mr Walker’s husband is entitled to a spouse’s pension calculated on all the years of Mr Walker’s time with Innospec.

It will be interesting to see what if any repercussions arise from this case but for anyone who is experiencing a separation or divorce and is not sure where they stand on obtaining a share of their spouse’s pension, Barker Gotelee can in most circumstances offer a free 30 minute consultation to discuss the options available.

Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors.

Ipswich Family Solicitors – for more information on our range of legal services, please call the team on 01473 611211 or email