"Death Bed Marriage" Rule in Pension Scheme Not Discriminatory
The CJEU has ruled that a pension scheme member was not discriminated against based on sexual orientation

On 24 November 2016, the Court of Justice of the European Union (CJEU) issued its judgment in the Dr David Parris v Trinity College Dublin case. The final decision diverges from the opinion of Advocate General (AG) Kokott (see our previous article here), who found that there had been indirect discrimination against the plaintiff based on his sexual orientation. 

Dr Parris had sought to establish that his civil partner should be entitled to receive a survivor's pension on his death. The Trinity College scheme rule prescribed that a survivor's pension would not be available where a member had married or entered into a civil partnership after reaching the age of 60 or after having retired. Dr Parris retired in 2010 at age 64. The Civil Partnership Act 2011 entered into force on 1 January 2011. It was legally impossible for him (or any other homosexual scheme members who turned 60 before 2011) to satisfy this scheme requirement prior to 2011.

The questions put to the CJEU were whether that rule was discriminatory on grounds of sexual orientation or on grounds of age; or, whether discrimination arose from the combined effect of both age and sexual orientation grounds. AG Kokott had considered the rule to constitute indirect discrimination based on sexual orientation. The CJEU, however, held that the rule was not discriminatory on this basis. Key to its reasoning was that Member States were not required to implement civil partnership or same sex marriage (or required to do so retrospectively). Member States were also not required to lay down transitional measures for same sex couples in a position similar to Dr Parris (if circumstances thwarted them from satisfying this rule due to the timing of legal developments in Ireland).

The CJEU concluded that the scheme rule was covered by Article 6(2) of Directive 2000/78, which permits the fixing of ages for admission or entitlement to retirement benefits. Therefore no age discrimination occurred. On the question of the combined effect of discrimination, the CJEU found that where a national rule creates neither discrimination on the ground of sexual orientation nor age the rule cannot produce discrimination on the basis of the combination of those factors.

This judgment will be a comfort for any employers with similar restrictions in their rules. It is also a reinforcement of the exception in age discrimination law for pension schemes and confirms the lack of a rule on combined discrimination in circumstances such as these. 

Contributed by Jane Barrett & Ciara McLoughlin

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