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When Equality = Discrimination

When Equality = Discrimination

A great advantage of written law is the certainty it provides. However, a great disadvantage is that the literal interpretation of written law can result in practices that would seem absurd to those who drafted it. In the recent case of Walker v Innospec Limited and others the Employment Tribunal (ET) attempted to deal with one such absurdity.

The law

The Civil Partnership Act 2004 (which came into force on 5 December 2005) enabled same sex partners to enter into registered civil partnerships. And the Equality Act 2010 requires every work based pension scheme to have a non-discrimination rule read into it which prohibits the trustees, managers or any participating employer from discriminating against, harassing or victimising a member or a person who could become a member of the scheme. 

The facts

Mr Walker registered his civil partnership with his long-term partner in 2006. Mr Walker had already retired, but notified his employer of this change in status to secure his partner a spouse’s pension in the event of his death. He was advised by the company that while his partner would receive a spouse’s pension, they would only be treated as a married couple for service since 5 December 2005. Therefore, the spouse’s pension would amount to a mere £500 annually, compared to the £41,000 annually a hypothetical wife of Mr Walker would receive, had he been married.

This different treatment of civil partners is specifically permitted under the Equality Act, which was introduced to implement the EU Directive that protects individuals against discrimination.

So first appearances suggest this is a closed case. The company acted in accordance with UK legislation and could hardly be faulted for taking the less costly approach permitted by that legislation.  Nevertheless, the effect of the company’s actions was to discriminate against Mr Walker on the grounds of his sexual orientation, the very thing that the legislation was intended to prevent.

Enter the ‘Golden Rule’ - a somewhat more flexible approach to judicial interpretation. This approach provides that where the literal application of a rule would lead to an absurdity, the courts may then apply a secondary meaning. It is a sacrifice of certainty to prevent absurdity.

To this end, the ET ruled against the company, declaring their actions to be discriminatory and ruling that the legislation must be interpreted in such a way as to be in keeping with the EU Directive’s anti-discrimination objectives – a somewhat dubious position given the very specific provisions of the Equality Act.

This is a surprising decision. If correct it means that employers can no longer ask, ‘what does this legislation allow me to do?’ but must instead think, ‘if I do what this legislation permits, will it still be discriminatory?’

However, this is an Employment Tribunal decision, binding only on the parties in this particular case. It will not be binding in subsequent cases. It is also likely to go to appeal, which could well result in the decision being overturned. On the other hand, the Employment Appeal Tribunal could confirm the ruling, and that would be binding in future ET cases. And, of course, the legislation could be amended, so that it reflects a more tenable position.

At this stage, it is difficult to determine how significant this decision will be. However, it is certainly a case to keep an eye on, going forward.

Liam Young
Trainee Solicitor

LChalmers