Avid readers of Professional Pensions may have seen an ariticle in the 6th September edition regarding the case of Waddy v Foster Wheeler (yes, THAT Foster Wheeler – just can’t seem to keep out of the pension press can it??). I was asked to comment on the case just as I was rising from a Magistrates’ court sitting so I’m not sure my thoughts were fully cogent at the time!!

The significance of this case is that it concerns the rights of gay couples in a Civil Partnership to the same pension rights as heterosexual spouses. Now you may have thought that all this was sorted some time ago with the passing of legislation back in 2005 and it’s reenactment under the Equality Act 2010. But the more techically minded amongst you will also remember that there was an option available to schemes to only “equalise” benefits which accrued post December 2005. And that’s what many schemes did of course – largely to control costs for which funding had not been provided prior to then.

It seems (although in fact aspects of this case have settled outside of court so there is no formal trancript of events) that Foster Wheeler did not provide full benefits for Civil Partners. Mr Waddy and his partner Mr Skipp had been together for 40 years and entered a CP in 2006. The scheme having taken advantage of the exception has now agreed to provide full benefits in this case but maintain that the scheme rules were entirely lawful.

Liberty who took the case on Mr Waddy’s behalf continue to maintain that the Equality Act exception is unlawful both in respect of EU law and under the European Convention of Human Rights. The point will be argued further in an Employment Tribunal in January 2012 and we await the outcome with interest.

I have to admit that even when the legislation was first passed, I did just wonder whether the temporal limitation would ever be challenged. Now it seems that it is, I suspect that if Liberty lose at the ET, that won’t be the end of the matter. It is amazing that in the second decade of the 21st Century we should still be in doubt as to the intent and validity of equal rights. But that’s pensions for you. Why make things simple when it’s so much fun to make it complicated…

Been a bit quiet on the pension front this week – must be something to do with some vote thingy going on in the country. Pensions seem pretty low on the politicians agenda (it’s that ‘too difficult’ basket again) so I thought this week I’d actually blog about a bit of law (shock horror!!)

The Outer House Court of Session (it’s a Scottish court for all you Sassenachs) has put the boot into the English once again over of all things, the equalisation of pension rights in schemes.

For those of my readers who may not be pension experts, a little reminder. Since 17 May 1990 and the Barber decision in the European Court of Justice, men and women have had equal pension benefits applied to them. The decision (and various subsequent and refining judgements) have said that the disadvantaged sex must be given the same rights as the advantaged sex unless and until schemes were amended to ‘level down’ all the benefits equally. Typically this meant that men who had a Normal Retirement Age of 65 would be able to take any benefits that accrued to them after 17 May 1990 at age 60 – the NRD for women – without any actuarial reduction for early payment. However schemes could be amended to make NRD 65 for both sexes. The period between 17 May 1990 and the amendment date is called the Barber Window.

Still with me – jolly good! Now, many schemes got very worried by the Barber window and sought to close it as soon as possible. Unfortunately this was often acheived without too much attention being paid to the strict amendment powers of the scheme rules. The English courts have considered this and have said, most notably in the Trustee Solutions v Dubery case, that unless the amendment requirements were strictly adhered to (for example if it required amendment by Deed, a scrappy piece of paper calling itself an Announcement just wouldn’t do) then the amendment was not valid and the Barber window remained open. Much wailing and gnashing of teeth as schemes already in deficit suddenly faced a liability for which they hadn’t properly funded!

Now our friends North of the Border have put something of a coach and horses through that principle in a case called Low and Bonnar v Mercer Limited. Lord Drummond Young (for it was he) has declared that the Scottish language is somewhat different to that of English and the word ‘Deed’ did not mean quite the same thing and had no techincal meaning in Scottish law. Consequently if a scheme required an amendment to be by Deed in Scotland, that could in fact merely imply some form of formal writing such as a Board Minute. Well, lots of rejoicing in Edinburgh and Glasgow then but not much comfort for us in the South where equalisation remains one of the thorniest problems we pension lawyers are having to deal with.

It’s enough to drive one to drink…Mine’s a good single Malt…