Equalisation problems in practice—the key cases for pension lawyers
Produced in partnership with Elizabeth Ovey of Radcliffe Chambers
Equalisation problems in practice—the key cases for pension lawyers

The following Pensions guidance note Produced in partnership with Elizabeth Ovey of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • Equalisation problems in practice—the key cases for pension lawyers
  • Mixed retirement ages—the issue
  • Mixed retirement age—Trustee Solutions v Dubery (Court of Appeal)
  • Mixed retirement age—Foster Wheeler v Hanley
  • Non-compliance with power of amendment
  • Failed equalisation—BESTrustees v Stuart
  • Failed equalisation—Trustee Solutions v Dubery (first instance)
  • Failed equalisation—Capital Cranfield Trustees v Beck
  • Successful prospective equalisation—Premier Foods Group Services v RHM Pension Trust
  • Successful amendment—HR Trustees v Wembley
  • more

On 17 May 1990 the European Court of Justice decided, in Barber v Guardian Royal Exchange [1990] 2 All ER 660, that men and women’s entitlement to equal pay for equal work or work of equal value extends to that part of their remuneration which consists of pension benefits. This often meant that a scheme’s governing documentation had to be amended to provide equal pension benefits for men and women. The process of applying the principle in Barber became known as equalisation.

Although at first the precise scope of Barber was not entirely clear, the outstanding issues were very largely resolved by further cases culminating in Coloroll Trustees v Russell [1995] All ER (EC) 23. For further information, see Practice Note: Equalisation and Barber—the pension implications.

This Practice Note considers the courts’ approach to certain practical difficulties which have subsequently come to light involving:

  1. mixed retirement ages

  2. non-compliance with the terms of the power of amendment

  3. retrospective amendments

  4. contractual promises made outside the scheme

Mixed retirement ages—the issue

Following Barber, where a scheme contained different normal retirement ages for men and women, members of both sexes were entitled, in respect of benefits accrued post 17 May 1990, to retire at the lower age unless, and until, the scheme was amended to provide for a common higher retirement age. This gave rise to