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In Copple and others v Littlewoods plc (a test case), the Court of Appeal has confirmed that part-time female employees were not entitled to a remedy for exclusion from a voluntary occupational pension scheme beyond what was proportionate to their loss. Regulations specify that part-time workers should be given access to an occupational pension scheme on no less favourable terms than full-time workers and the courts have a discretionary remedy to declare that an employee could be admitted to a scheme retrospectively.
In this case, part-time female employees were denied access to the pension scheme during certain closed periods. It was held that if they could not show on the balance of probabilities that they would have joined the voluntary scheme had they been eligible to do so, they were not entitled to retrospective membership. This ‘opt-out' principle was compatible with EU law as full-timers who had chosen not to join the scheme did not have the option for retrospective access either.
In applying the opt-out principle, courts should consider all the facts and leave open the opportunity for part-timers to argue there was a reasonable excuse for any delay in joining once they became eligible. The Court of Appeal looked at the burden of proof required to show that women would have joined the scheme and noted that the failure to join a scheme once eligible will often be powerful evidence in support of the inference that a woman would not have joined had she been eligible beforehand.
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