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Copple and others v Littlewoods PLC and others (Court of Appeal) - 8 November 2011

The Court of Appeal (CA) has rejected an appeal against the decision of the Employment Appeal Tribunal (EAT).  In doing so, it has confirmed that the remedy available in the UK courts for female part-time employees excluded from their employer’s pension scheme is compatible with EU law.

Background

Under the Equal Pay Act 1970 (and now the Equality Act 2010), it is unlawful for an employer to exclude part-timers from its occupational pension scheme. 

Prior to 1 April 1990, part-timers were excluded from the pension scheme operated by Littlewoods PLC (the Scheme).  Between 1 April 1990 and 1 July 1995, eligibility was opened up in stages depending on hours worked.  The Scheme was finally opened to all on 1 July 1995.

In the key case on part-timers’ rights, Preston v Wolverhampton Healthcare NHS Trust No.31, it was established that part-timers should have been able to join their employer’s scheme from the later of the date they commenced employment and 8 April 1976 (the date from which the ECJ judgment in Defrenne v Sabena2 took effect, providing that Article 119 of the EC Treaty for equal treatment of the sexes can be relied upon in national courts by individuals suing private companies).

EAT Decision

The EAT concluded that most of the claimants in this case were not entitled to a declaration of retrospective access to the Scheme.  This was because, although they had been unlawfully excluded, they had suffered no loss as they would not have joined even if they had been able to do so (referred to as the “opt-out” principle).

Three of the claimants successfully demonstrated that they would have joined the Scheme, had they been eligible to so.  However, the EAT confirmed the Employment Tribunal’s decision that it was not appropriate to extend the declaration of retrospective access beyond the period during which the claimants were excluded from the Scheme.  Once part-time employees became eligible for admission, their not joining was down to personal choice rather than discrimination.

Court of Appeal Decision The CA upheld the EAT’s decision.

The CA found that where different access rules are applied for part-time and full-time employees without justification, this is discriminatory.  The remedy available in these circumstances is that a court or tribunal has a discretion to grant a declaration that the employee is to be admitted to the scheme in question.  This was, in the court’s view, compatible with EU law.

The CA also concluded that:

·              granting retrospective access to those who had chosen not to join would put them in a better position than full-time employees and would be contrary to the principle of non-discrimination; and

·              retrospective access should not (in general) be granted to part-time employees beyond the period during which the Scheme was closed to them. 

The appellants further argued that the Employment Tribunal had imposed too high a burden of proof on those employees who had sought to establish that they would have joined the scheme had they been eligible to do so.  Elias LJ rejected this argument, relying on his previous observation that “failure to join when eligible will often be powerful evidence in support of the inference that the woman would not have joined even when she had been eligible to do so”.  On the basis of existing authorities, he held that “the fundamental question is whether on the balance of probabilities the woman would have joined during the closed period, and all the evidence bearing on that question must be considered”.

Comment

This confirmation from the CA is clear: retrospective access to pension scheme membership is not extended beyond the date on which part-timers became eligible for admission.  Part-timers who did not join the pension scheme at their first opportunity will not be able to change their minds retrospectively.