An exception from age discrimination for periods of pensionable service prior to 1 December 2006 was potentially not compatible with EU law, but could only be set aside for pensioners who had made a claim before 31 December 2020.
Facts
17 pensioner members of a particular retirement benefits scheme brought age discrimination claims. The sponsoring employer of the scheme became insolvent, and the pensioners challenged the cap on compensation payable by the Pension Protection Fund (PPF). The PPF rules meant that pensioners who had not reached normal pension age only received compensation of 90% of accrued pension subject to a cap. Pensioners over normal pension age received 100% of their accrued pension.
The claimant pensioners had not reached normal pension age and argued that the reduced amount of compensation they were entitled to was unlawful age discrimination. There is an exception from discrimination in relation to pension schemes for pensionable service before 1 December 2006. All of the pensioners had left pensionable service before this date, but they argued that this should not be applied because it was incompatible with European Union law and the Equal Treatment Framework Directive.
An Employment Tribunal decided at a preliminary hearing that the cut-off date of 1 December 2006 should be disapplied because it was incompatible with the Equal Treatment Framework Directive. The Secretary of State for Work and Pensions was joined to an appeal against this decision to the Employment Appeal Tribunal (EAT).
Decision
The EAT decided that it was not permissible to disapply the exception for 15 of the 17 pensioners, because their claims had been brought after 31 December 2020.
This was because of the effect of Brexit. The European Union (Withdrawal) Act 2018 provides that both EU directives and the EU Charter (which contains a general principle of non-discrimination) do not have effect in UK law after 31 December 2020. This meant the courts did not have power to disapply UK law based on either EU directives or the Charter in claims brought after that date.
Two of the pensioners had brought their claims before 31 December 2020, and these have been sent back to the Employment Tribunal to decide whether the compensation payable to pension members below normal pension age was discriminatory on grounds of age.
The judgment is available here
Secretary of State for Work and Pensions v Beattie & Others [2022] EAT 163, 27 October 2022