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Let’s Keep it Civil
By Christopher J Sherliker

Avid readers of Professional Pensions may have seen an article in the 6th September edition regarding the case of Waddy v Foster Wheeler (yes, THAT Foster Wheeler case – just can’t seem to keep out of the pension press can it?). Pensions Partner Jennie Kreser explains the importance of this case for gay couples.

The significance of this case is that it concerns providing gay couples in a civil partnership with 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 its re-enactment under the Equality Act 2010.

But the more technically-minded amongst you will also remember that there was an option available to schemes to only “equalise” benefits 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 aspects of this case have settled out of court so there is no formal transcript 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 civil partnership in 2006. The scheme, having taken advantage of the exception, has now agreed to provide full benefits in this case, but maintains that the scheme rules were entirely lawful.

Liberty, which took the case on Mr Waddy’s behalf, continues 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 wonder whether the temporal limitation would ever be challenged. Now that it is, I suspect that if Liberty loses at the Employment Tribunal, 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…?

Added: 8th November 2011

Christopher J Sherliker is a partner for Silverman Sherliker LLP who provide legal solutions across a spectrum of requirements.  Find out more about Silverman Sherliker LLP.

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