Facts

The 17 claimants were part of a defined benefit pension scheme. When their former employer became insolvent, the scheme's funding levels were assessed to determine if the pension protection fund (PPF) should take responsibility. The claimants were receiving their pensions by this point but had not reached the normal pension age. In line with normal PPF compensation rules, pensioners who had reached normal pension age before the PPF assessment received 100% of their pension, whereas those who had not done so received only 90%. The claimants argued that this differential treatment amounted to direct age discrimination and a breach of the non-discrimination rule in section 61 Equality Act 2010.

The government relied on an exemption to the non-discrimination rule within a 2010 Order that allows age discrimination in relation to pensionable service before 1 December 2006. All of the claimants in question had completed their pensionable service before then. The claimants said that the 2010 order should be declared invalid, since it breached the EU law principle of equal treatment in the EU Charter of Fundamental Rights.

Decision

15 out of the 17 claimants were too late to make this argument. By the time they filed their claims, the UK had left the EU and the terms of the European Union (Withdrawal) Act 2018 applied.  This Act essentially switched off the applicability of the EU Charter of Fundamental Rights and made clear that it was no longer open to any court or tribunal to disapply a UK law on the basis that it was incompatible with the EU Charter. The only exception was in relation to proceedings started before 31 December 2020. Two out of the 17 claimants had filed their claims before that deadline so their claims could proceed. The others were precluded by the laws implementing Brexit from continuing with their claims.

The judgment is available here

Secretary of State for Work and Pensions v Beattie & Ors [2022] EAT 163