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Discrimination, same sex marriage and survivors’ benefits (Parris v Trinity College Dublin)

Thursday, January 12th, 2017

C‑443/15: Parris v Trinity College Dublin

Former Trinity College Dublin lecturer, Dr Parris, had sought to establish that his same sex partner would be entitled to receive a survivor’s pension on his death. Dr Parris had entered into a civil partnership in the UK on 21 April 2009. Following a change in Irish law, his civil partnership was recognised in Ireland on 12 January 2011.

Under the rules of the university’s pension scheme, a member’s surviving spouse or civil partner would receive a pension for life equal to two-thirds of the amount payable to the member before his death but only if the marriage or civil partnership was entered into before the member reached age 60. Where the marriage or civil partnership took place after age 60, the surviving spouse or civil partner would be entitled to a reduced survivor’s pension for a five-year period and only if the death occurred within five years from the date the member retired (Dr Parris had retired in December 2010).

Dr Parris’ application to the university was rejected and a complaint to the Employment Tribunal was unsuccessful. The case was then taken to the Irish Labour Court, which referred the questions to the Court of Justice of the European Union for a preliminary ruling.

Three questions were referred to the court, as follows:

Question 1

Is it discrimination on grounds of sexual orientation to apply a rule in an occupational benefits scheme which limits the payment of the survivor’s pension to the surviving civil partner of a member of the scheme on their death by requirement that the member and his surviving partner entered their civil partnership prior to the member’s 60th birthday in circumstances where they were not permitted by national law to enter a civil partnership until after the member’s 60th birthday and where the member and his civil partner had formed a committed life partnership before that date?

Question 2

If the answer to question 1 is negative, does it constitute discrimination on grounds of age for a provider of benefits under an occupational benefits scheme to limit an entitlement to a survivor’s pension to a surviving civil partner of a member of the scheme on the member’s death by a requirement that the member and his civil partner entered their civil partnership before the member’s 60th birthday where the stipulation as to age is not a criterion used in actuarial calculations and where the member and his civil partner were not permitted by national law to enter a civil partnership until after the member’s 60th birthday and where the member and his civil partner had formed a committed life partnership before that date?

Question 3

If the answer to question 2 is negative, would it constitute discrimination if the limitations on entitlements under an occupational benefits scheme described in question 1 or question 2 arose from the ‘combined effect’ as age and sexual orientation of a member of the scheme?

Generally, in relation to question 1, the Court of Justice found that there was no discrimination on the grounds of sexual orientation.

The court found that there had not been direct discrimination on the grounds of sexual orientation as the rule in question had been mutually formulated and affected both homosexual and heterosexual employees in the same way.

In addition, the Court of Justice also found that the rule did not indirectly discriminate on grounds of sexual orientation on the basis that EU law did not, at the time, require Ireland to provide for marriage or a form of civil partnership for same-sex couples, nor to give retrospective effect to national laws and the provisions adopted pursuant to those laws. Nor did it lay down transitional measures for same-sex couples where the member of the scheme had already reached the age of 60 on the date on which the national law came into force.

In relation to question 2, the court held that the rule did not constitute discrimination on the grounds of age. The fact that it was legally impossible for the member to enter into a civil partnership before reaching the age of 60 did not, the court held, affect their conclusion since the element of impossibility was a consequence of the fact that, on his 60th birthday, national laws did not provide for any form of civil partnership for same-sex couples. As in their consideration for question 1, EU law did not preclude the state of national law.

Finally, in relation to question 3, the court held that where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of the two. The court acknowledged that while discrimination may be based on several grounds, there is, however, no new category of discrimination resulting from the combination of more than one of those grounds, which may be found to exist where discrimination on the basis of those grounds taken in isolation has not been established.

While the court and the AG agreed on some points, there were notably more aspects where they did not.

In relation to question 1, the AG found that there had been indirect discrimination based on sexual orientation because it was legally impossible for homosexuals born in Ireland before 1951 to enter into a civil partnership before the age limit of 60 was reached. The AG believed that the rule could not be objectively justified because more lenient measures were available and the rule was not proportionate and would lead to excessive adverse effects on the legitimate interests of employees. She found that this therefore constituted unlawful indirect discrimination.

Conversely, the Court of Justice found that the rule did not indirectly discriminate on grounds of sexual orientation because EU law did not, at that time, require Ireland to provide for marriage or a form of civil partnership for same-sex couples, nor did it give retrospective effect to national laws and the provisions adopted pursuant to those laws. Nor did it lay down transitional measures for same-sex couples where the member of the scheme had already reached the age of 60 on the date on which the national law came into force.

The court and the AG also disagreed on the question of whether the rule constituted discrimination on the grounds of age. While the AG held that the rule was directly discriminatory on the basis that grounds of age did not fall within any of the derogations from the Equality Directive 2000/78/EC, the court held that the element of impossibility, referred to previously, was a consequence of the fact that national laws at the time did not provide for any form of civil partnership for same-sex couples. The fact that it was legally impossible did not affect their decision.

Finally, the court too rejected the AG’s opinion that there was indirect discrimination on the grounds of a combination of sexual orientation and age. The court concluded that where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of the two.

To some extent, the case turns on its facts and the timing of the change in civil partnership laws in the Republic of Ireland. That said, it provides useful confirmation that scheme rules prohibiting death bed marriages are not in breach of the age discrimination requirements.

As our previous article on this case detailed (see ‘News Analysis: Same sex marriage and survivor’s benefits—discriminatory treatment?’), the appeal to the Supreme Court in Innospec Ltd v Walker [2015] IRLR 1005 CA will be the next high-profile UK case. The facts of the Walker v Innospec case are slightly different from those of Dr Parris as they concerned the restriction of survivor’s benefits to the time when the legislation came into force. For Dr Parris, the restriction concerned restriction of survivor’s benefits to marriages taking place after a specified age.

The decision in Dr Parris’ case will be of interest to many employers and trustees of UK defined benefit schemes that restrict the survivor benefits payable to civil partners or spouses. However, the Supreme Court decision in Innospec Ltd v Walker is likely to be of greater relevance because the death-benefit restrictions found in the Innospec Ltd v Walker case are more commonly found in the UK market.

The case of Dr Parris does not address precisely the same sort of scheme rule as seen in Innospec Ltd v Walker but there are degrees of similarity and the Court of Justice’s decision is likely to provide support that such rules are compliant with discrimination law.

In addition to the points outlined above, the AG’s opinion considered the temporal aspects of Dr Parris’ claim. This was not considered by the Court of Justice because they concluded that there had not been any discrimination. We will wait to see what, if any, conclusion is brought on this point in the Innospec Ltd v Walker case which is due to be heard by the Supreme Court in 2017.

Interviewed by Anne Bruce.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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