In Dr. David L Parris v Trinity College Dublin, the Advocate General has given an interesting opinion in a case involving claims of age and sexual orientation discrimination concerning pension entitlements.

Facts

Dr. Parris was a lecturer at Trinity College Dublin. He worked there between 1972 and 2010 and had lived with his same-sex partner in a relationship for more than 30 years.

Dr. Parris and his partner entered into a civil partnership in the UK in 2009 when Dr. Parris was 63. However, their civil partnership was only recognised in Ireland with effect from 12 January 2011. This is because the laws in Ireland lagged behind those in the UK regarding civil partnerships.  

Dr. Parris was also a member of the occupational pension scheme provided by the College. He took early retirement aged 64 in December 2010 and began drawing his pension.

An issue arose in relation to the entitlements under the scheme for his partner. The scheme provided a ‘survivor’s pension’ of two-thirds of a member’s entitlement for the lifetime of a member’s spouse or civil partner in the event of the member’s death. However, under the rules of the scheme, this right was only available if the marriage or civil partnership was entered into before the member reached the age of 60, or before he retired, whichever was the earlier.

If these conditions were not met, the surviving spouse or civil partner was entitled only to a reduced ‘survivor’s pension’ for five years (and this was only available if the death occurred within five years of the date of the member’s retirement).  

Dr. Parris sought to challenge the rules of the scheme on the basis they were discriminatory on the grounds of age and sexual orientation. Dr. Parris argued that it had been impossible for him to enter into a same-sex marriage or civil partnership before his 60th birthday because of the legal position in Ireland. He also argued that the rule could not be justified because of its disproportionate impact on those who chose to marry later in life.  

The case was referred to the ECJ and, as is the practice with any such cases, a preliminary opinion was given by the Advocate General.

Decision   

The Advocate General opinion can be broken down into four main parts:

1. The arguments of direct discrimination on the grounds of sexual orientation were rejected on the basis that the rules only referred to age and were neutral in terms of targeting same-sex couples. There could be many reasons why a gay couple chose not to marry before they were 60.
2. However, the scheme rules did amount to indirect discrimination on grounds of sexual orientation as they had a disproportionate impact on gay couples who could not legalise their relationships in the same way as heterosexual couples until the changes in the law. While it was acknowledged that the aim of the scheme to exclude “death-bed marriages” was a legitimate one, the rule was an “extremely drastic measure” which was not a necessary means of achieving that aim.
3. The rules also amounted to direct discrimination on grounds of age and could not be justified for the reasons set out above.
4. Indirect discrimination also arose from the combined effect of discrimination based on sexual orientation and age.

These decisions are perhaps not hugely surprising, but what is more surprising is that the Advocate General went against previous UK decisions and rejected the argument that Dr. Parris’ periods of service before the Directive on Equal Treatment Directive (the European law on which age and sexual orientation discrimination is based) could not be counted as this would give the changes in the law ‘retrospective effect’.

Comment

As ever, it will be interesting to see what the ECJ makes of the opinion, particularly in light of its contrary view to existing UK decisions. It is worth remembering that the opinion of the Advocate General is not binding on the ECJ or national courts although it is frequently a good indicator of the likely decision of the ECJ.

 Dr. David L Parris v Trinity College Dublin and others (Case C-443/15).