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The Advocate General (AG) has considered whether the requirements for a survivor's pension were indirectly discriminatory on the grounds of sexual orientation and called into question the 'no retroactivity' principle followed in recent case-law.
In Dr David L Parris v Trinity College Dublin and Ors, Dr Parris was a lecturer at Trinity College Dublin (Trinity) for over 35 years. He entered into a civil partnership with his long-term partner in 2009, when he was 63.
Dr Parris was a member of a non-contributory occupational pension scheme, and asked Trinity whether his partner would be entitled to receive survivor benefits on his death. Under the scheme, rights to a survivor's pension were only available if the marriage/civil partnership was entered into before the member reached 60 years of age, or before the member retired, whichever was sooner (the Death Bed Rule). On this basis, Dr Parris' partner was denied a survivor's pension.
Dr Parris appealed the decision to a domestic tribunal and then to the Irish Labour Court, who referred to the European Court of Justice (ECJ) for a preliminary ruling as to whether the Death Bed Rule was discriminatory on the grounds of sexual orientation. If not, the ECJ was asked to consider whether it was discriminatory on the grounds of age or from the combined effect of age and sexual orientation of the member.
The AG's opinion
The AG has given her preliminary opinion which is not binding on the ECJ or national courts, although AG opinions are frequently followed by the ECJ. The AG concluded that the age 60 limit constituted indirect discrimination on grounds of sexual orientation, because it was legally impossible for Dr Parris to enter into a civil partnership before he had reached 60.
The AG opined that the age limit was designed to prevent the detrimental effects of 'death bed marriages', in which members marry in order to enable someone close to them to receive survivor benefits at the expense of the employer and other members.
However, the AG found the restriction to be an 'extremely drastic measure' and felt that there were other ways to achieve the employer's legitimate aim.
The AG also found that the age limit constituted direct discrimination on the grounds of age, and suggested that discrimination could be made out by a combination of factors where it could not be made out on the basis of one characteristic alone.
The AG rejected the submission, which was supported by the UK government, that the effect of the decision should be limited in time to account only for the period from which the relevant law came into effect, ie action that was lawful when it occurred should not retrospectively become unlawful.
The AG's opinion appears to conflict with the decision in O'Brien v Ministry of Justice; Walker v Innospec and Ors and, if followed, would vastly increase the exposure of employers to liability.
It will be interesting to see whether the ECJ follows the AG's opinion in its ruling, particularly in light of the impending appeal to the Supreme Court in O'Brien.
We will provide a further update once the ECJ issues a final decision.