Equality in Occupational Pensions — The New Frontiers after Barber
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb02652.x |
| Published date | 01 March 1991 |
| Date | 01 March 1991 |
| Author | Barry Fitzpatrick |
CASES
Equality in Occupational Pensions
-
The New
Frontiers after
Barber
Barry Fitzpatrick
*
When Douglas Barber was made redundant by Guardian Royal Exchange Assurance
(GRE) on
31
December
1980
at the age of
52,
his redundancy package includcd
a
statutory redundancy payment, together with an
ex
gratia
payment but excluded
an entitlement to an immediate occupational pension
(OP),
which was deferred
until
his pension age of 62.
A
redundant woman aged 52 would,
in
similar circumstances,
have received
a
smaller lump
sum
than Mr Barber but would have had immediate
access to her
OP.
Mr Barber’s claim under section
l(1)
of the Sex Discrimination
Act 1975 might well have succeeded, were
it
not for the notorious ‘retirement
provision’ exclusion
in
section 6(4) of the Act.
Mr Barber’s success at
the
European Court of Justice (ECJ)’ goes some way
towards settling two crucial ‘frontiers’
in
Community equality law. The first is
between ‘employment equality’ and ‘welfare equality’ provisions and the second
is between thc scope of Article 119/EEC and the residual scope of the employment
equality directives. This note considers the new demarcation lines established
in
Barber
and the implications of
Barber
for
UK
OP
schemes. Given these implica-
tions,
a
critical analysis
will
be made of measures and devices, including the
prospective effect given to
the
Barber
ruling, which might mininiise the financial
impact of the ruling and might,
in
the case of ‘equalisation downwards,’ snatch
improved benefits from the victims of sex inequality.
The New Frontiers
The applicant appeared to be on the wrong side of the first frontier between the
employment equality provisions, which govern equal pay and cqual treatment
in
working conditions* (and are largely free of exclusions), and welfare equality
provisions, which govern equal treatment
in
social security matters and, more
ambiguously, equal treatment
in
occupational
social sccurity3 (which are bedevilled
by exceptions). On this frontier, the ECJ concluded that both Mr Barber’s statutory
redundancy pay and the benefits from his ‘contracted-out’
OP
scheme were ‘pay’
within Article
1
19/EEC.4 The second frontier which confronted the applicant was
-
*Lecturer
in
Law.
Uiiiverity of NcwciIstlc-upon-TyIic.
I
am
grateful
to
Lorraine Flctcher,
Erikn
Syzszcziik
and
Sue
Ward
for coinmcnts upon
an
carlicr
draft
of this note.
I
Case C-262/881,
Ew!~er
v
Citardiatt
Royd
Exclmtigc
Assrircrttcc
Groitp
I19901 2
CMLR
513.
2
Article
I
I9/EEC
end Dircctive
75/117
on
cqual pay
(OJ
L
45/19, 19.2.1975)
and
Directivc
76/207
on equal trcatmcnt
in
working conditions
(OJ
L
39/40, 14.2.1976).
3
Dircctivc
79/7
on equill trcatment
in
social sccurity
(OJ
L
6/24,
10.
I.
1979)
and
Dircctivc
861378
on
cqual treatment
in
occupational social security
(OJ
L
225/40, 12.8.1986).
4
Two significant points from the Court’s judgnicnt arc, first,
that
thc Court re-asserts
(at
$19)
its conclu-
sion
in
Case
12/81,
Gar/aiid
v
Bririsli
Rail
Eitgittccring
[
19821 ECR 359,
$10
that
cx
gm/ici
payments
ure governed by Article
1
I9/EEC
and
sccond,
in
nccord with the
House
of
Lords
in
Hqword
v
Cnitiitrcll
bird
S/rip6rri/i/crs
L./d
[
19881 ICR 464 (HL(E)),
that
cach constituent elciiicnt of thc rcnluncration
peckuge must bc asscssed for the purposc of establishing ‘cquiil
pay’
(at
$34).
27
1
’11ir~
Morlcrtr
Lmv
Rcviciv
54:2
March
1991 0026-7961
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