Prior to the Barber judgment, it was permissible and normal practice for UK occupational pension schemes to have unequal retirement ages between male and female members, usually at 65 for men and 60 for women. This reflected state pension ages. After the date of the judgment, 17 May 1990, all UK occupational pension schemes were required to equalise pension ages for men and women.
In 1948, Mr Barber started work for an insurance company, this company was subsequently taken over by Guardian Royal Exchange Insurance Group (Guardian) and Mr Barber’s employment continued with Guardian. However, in December 1980 at the age of 52, Mr Barber was dismissed by reason of redundancy.
During his time as an employee of Guardian, Mr Barber had been a member of the Guardian Royal Exchange Pension Fund (“the Scheme”). The normal retirement age (NRA) for members of the main section of the Scheme was 65 for men and 60 for women. However, as he had transferred from his previous employer he fell into a separate section of the Scheme where the NRA was 62 for men and 57 for women. Importantly, the Scheme rules also provided that members may claim an immediate pension not only at NRA but also “on being retired” by Guardian at any time in the ten years preceding NRA. Dismissal by reason of redundancy was an eligible criterion for a member to fall into the category of “on being retired”.
As Mr Barber was dismissed at age 52, he was not granted an immediate pension but rather a deferred pension payable as from NRA (age 62). If Mr Barber had been a women aged 52 in the same circumstances, he would have been regarded by Guardian as having been retired and would therefore have received an immediate pension.
Mr Barber initially brought his complaint before the Employment Tribunal, alleging that Guardian had breached the Sex Discrimination Act 1975. This claim was dismissed, so Mr Barber proceeded to the Employment Appeal Tribunal and from there he progressed through the various stages of appeal to the House of Lords. His next avenue of appeal was the European Court of Justice (ECJ).
The essential question that came before the ECJ was whether pensions constituted ‘pay’ for the purposes of Article 119 (now 141) the EEC and Treaty and the EC Equal Pay Directive (Council Directive 75/117/EEC of 10 February 1975).
The ECJ agreed with Mr Barber’s claim that he had been discriminated against and that pension benefits were subject to Article 119 (141) and therefore constituted ‘pay’.
This decision meant that pension schemes had always fallen under Article 119 (141), a result which conflicted with previous EC Directives. Therefore, the Court restricted the retrospective application of the Barber decision so it would not operate prior to 17 May 1990.
For our comments on Barber, please click here.
Author: Euan MacLennan