European Court Ruling on Pension Equality Sparks New Path Forward for Employees

The European Court's decision in the Barber judgment of May 1990 established that pensions are pay and that different pension ages for men and women constitute sex discrimination, requiring employers to equalize pension ages for both sexes. As a result, the Department of Social Security (DSS) agreed to fund a case to clarify outstanding issues. Six cases were brought before the court, with significant implications for employers, employees, and trustees.

Key Takeaways:

• Employers can equalize pension ages by requiring women to work as long as men, but retirement ages must be equalized at 60 for periods of service completed after the Barber judgment.
• Trustees have the same obligation as employers to pay equal pensions to men and women.
• Disagreements about scheme equalization should be resolved in national courts.
• Equalization is a top priority, even if a scheme lacks sufficient funds to meet its cost.
• When an employee transfers their pension rights from one occupational scheme to another, the second scheme must bear the costs of equalizing pension benefits.
• Employers are free to raise women's retirement age, but must do so consistently for all women in the same position.
• Part-time workers are prohibited from being discriminated against by Article 119, and may request to back-date their membership of an occupational scheme.
• Public sector pensions must be equalized in the same way as private sector pensions.
• Transitional provisions for lower pension ages are not permitted, even if agreed before May 1990.

Statistics:

• 1990: The year the European Court ruled in the Barber judgment, establishing that pensions are pay and that different pension ages for men and women constitute sex discrimination.
• 60: The retirement age that must be equalized for periods of service completed after the Barber judgment.
• 119: The Article of the European Union's treaty that prohibits discrimination against part-time workers.
• 1976: The year part-time employees may request to back-date their membership of an occupational scheme.

Sources:

• European Court of Justice, Barber judgment (1990)
• Department of Social Security (DSS), agreement to fund case to clarify outstanding issues
• Coloroll judgment
• Smith v Avdel Systems case
• Vroege v NCIV case
• Fisscher v Voorhuis Hengelo case
• Beune v Bestuur van het Algemeen Burgerlijk Pensioenfonds case
• Van den Akker v Stichting Shell Pensioenfonds case