A Vanishing Breed? Walker 5 Innospec Ltd - The Uk Supreme Courtroom Disapplies A Statutory Provision On The Grounds Of Incompatibility Amongst Eu Equality Law
May 25, 2018
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Colm O’Cinneide, Professor of Law, UCL
Last week’s determination of the Great Britain Supreme Court (UKSC) inwards the same-sex pension rights illustration of Walker v Innospec Ltd [2017] UKSC 47 generated excited commentary inwards the Great Britain media. This mainly focused on the UKSC’s finding that it constitutes straight discrimination on the footing of sexual orientation – in addition to thus a breach of European Union police - for the rules of a employer’s contributory produce goodness scheme to deny payment of a ‘spouse’s pension’ to a surviving fellow member of a same-sex married couple, inwards circumstances where such a pension would live paid to the surviving fellow member of an opposite-sex married couple. This finding is manifestly significant, both for its application at national grade of the prohibition on straight discrimination on the footing of sexual orientation prepare out inwards Article 2 of the Framework Equality Directive 2000/78/EC, in addition to besides its concrete conduct upon on the acquired pension rights of same-sex married couples inwards the UK. However, the media coverage glossed over ii other of import elements of the judgment, which are of particular involvement from the perspective of European Union law.
One of those elements relates to the complex number of the temporal effects of a finding that national police is incompatible with European Union legal requirements – namely the Court’s conclusion that, inwards Lord Kerr’s words at para. 56, ‘the quest of unequal handling occurs at the fourth dimension that the pension falls to live paid’ in addition to non when the produce goodness inwards query was accrued, in addition to that no footing existed for limiting the retrospective consequence of the judgment inwards trace with the ECJ’s approach inwards Case C-262/88, Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889.
The other neglected dimension to the illustration is of to a greater extent than full general interest, especially inwards the run-up to Brexit – namely how the illustration resulted inwards the Supreme Court disapplying the provisions of Schedule ix para. eighteen of the Great Britain Equality Act 2010, insofar equally they permitted the type of discriminatory handling at number inwards the circumstances. In other words, inwards Walker, the obligation on national courts to give straight consequence to the requirements of European Union anti-discrimination legislation resulted inwards incompatible national legislation beingness prepare aside – possibly 1 of the lastly times this happens earlier Brexit insulates Great Britain parliamentary legislation from legal challenges based on European Union police or other primal rights standards.
The illustration involved a legal challenge past times a one-time employer of Innospec Ltd against their refusal to handgrip to pay a survivor’s pension to his same-sex husband if he died first, fifty-fifty though such a produce goodness would own got been paid out to Mr Walker’s husband had she been a woman. Innospec Ltd justified this exclusion inwards purpose past times reference to the provisions of Schedule ix para. eighteen of the 2010 Act, which permitted employers to restrain access to occupational benefits where the correct to that produce goodness accrued earlier five Dec 2005 (the appointment same-sex couples became legally entitled to travel into into civil partnerships).
At offset instance, Mr Walker won his claim that he had been plain of written report to straight in addition to indirect discrimination on the grounds of sexual orientation, with the Employment Tribunal lastly that Schedule ix para. eighteen could live applied inwards a vogue compatible with the relevant requirements of Directive 2000/78/EC. Subsequently, however, Innospec appealed successfully against that decision, with the Court of Appeal lastly that Mr Walker had been plain of written report to straight discrimination on the footing of his sexual orientation but that the principles of ‘non-retroactivity’ in addition to ‘future effect’ equally developed inwards the case-law of the CJEU meant that the prohibition on discrimination applied exclusively to benefits accruing after the transposition of the Directive inwards Dec 2003. (Mr Walker had taken early on retirement inwards March 2003.)
This conclusion was criticised past times Robert Wintemute with others, inwards detail inwards a case-note inwards the Industrial Law Journal inwards 2016 (‘Unequal Same-Sex Survivor’s Pensions: The EWCA Refuses to Apply CJEU Precedents or Refer’ (2016) 45(1) Ind Law J 89-100), in addition to his criticisms were afterward explicitly cited past times Lord Kerr inwards giving the judgment of the bulk of the Supreme Court reversing the determination of the lower court.
In brief, the Supreme Court initially applied the established case-law of the CJEU inwards cases such equally Case C-267/06, Maruko [2008] 2 CMLR 32 in addition to Case C-147/08, Römer [2011] ECR I-3591, in addition to confirmed that less favorable handling past times an employer of same-sex partners equally compared to opposite-sex partners who own got entered into the same or equivalent type of legally recognised human relationship volition constitute straight discrimination on the grounds of sexual orientation.
Turning to the query of the remedy in addition to past times extension the legal consequence of Schedule ix para. 18, the UKSC went on to survey the relevant case-law of the CJEU dealing with issues of the retrospective consequence of judgments. It concluded that the ECJ’s determination to restrain the temporal consequence of its finding of gender activity discrimination inwards the occupational benefits illustration of Barber was a judicial technique that should exclusively live applied ‘in the close exceptional circumstances in addition to where the conduct upon [of a judgment] would live real “catastrophic”’ (para. 44).
The Supreme Court farther concluded that the CJEU case-law established that the discriminatory handling inwards query should live viewed equally taking consequence at the fourth dimension when the pension was due to live paid, inwards purpose because it was exclusively at that quest of fourth dimension that the spousal obligations at number crystallised into tangible form. In in addition to so doing, they rejected suggestions past times counsel based on views expressed past times AG Van Gerven inwards Case C-109/91, Ten Oever [1993] ECR I-4879 that pension entitlements accrued equally they were earned, in addition to thus that whatever discrimination occurring would own got predated the appointment of transposition of the Directive. The UKSC thus concluded that the provisions of Schedule ix para. eighteen of the 2010 Act could non live applied insofar equally they precluded liability arising for the discriminatory conduct inwards question, which was incompatible with the requirements of Directive 2000/78/EC in addition to the full general regulation of equal handling equally confirmed to be past times the CJEU inwards illustration C-555/07, Kücükdeveci [2010] 2 CMLR 33.
The Walker judgment is thus specially interesting for iii reasons: (i) the faithful application past times the UKSC of the case-law of the CJEU inwards relation to discrimination against same-sex partners; (ii) the Supreme Court’s interpretation of the relevant CJEU case-law relating to the temporal consequence of findings of discrimination inwards the context of occupational benefits, which gives potent consequence to the regulation of non-discrimination; in addition to (iii) the agency inwards which it illustrates how parliamentary legislation tin live disapplied if its conflicts with primal rights secured nether European Union law, inwards detail the correct to non-discrimination.
After the procedure of Brexit is complete, this cast of legal protection of equality is probable to autumn away, along with the supremacy of European Union police inwards general. Walker may thus grade 1 of the lastly instances where European Union police takes consequence equally a trump menu inside the British legal system; equally such, it is hitting that its consequence was to disapply a statutory provision designed to bound liability for discriminatory behaviour.
Barnard & Peers: chapter 27, chapter 20, chapter 6