ABSTRACT
For a very long time one of the most notable features of occupational pension schemes has been discrimination between men and women. There is little doubt that the influence of state schemes has had its effect as the state scheme has always, historically, provided pensions for men at 65 and women at 60. It has always been thought that the logic behind the different state pension ages was that wives were on average, five years younger than their husbands and lived longer, with the result that the five year difference meant husbands and wives tended to retire at more or less the same time. It is, however, thought that social trends today have changed so much that the five year difference is no longer acceptable or supportable (see, eg the National Association of Pension Funds Discussion Paper, ‘Equalising Today’s Pension Ages’, March 1991). By Article 119 of the Treaty of Rome the principle of European law that men and women are entitled to receive equal pay for equal work is established. It is thought that discrimination, whether direct or indirect, or different treatment of one sex vis-à-vis the other in relation to pay, based purely upon the biological differences, is contrary to the terms of the Article. The European Court of Justice has decided that occupational pensions are ‘pay’ within Article 119 and has ruled that this applies not only to contractedout pensions but to contracted-in pensions (Bilka-Kaufhaus Gribh v Weber Von Hartz (Case 170/84) [1987] ICR 110, and Barber v Guardian Royal Exchange Assurance Group PLC (Case 2-262/88 [1991] ICE B 334). Prior to these cases and to the Pensions Act of 1995, UK legislation tended to ignore any requirement of equal treatment of men and women. The position has now been changed by ss 63-66 of the Pensions Act 1995 and The Occupational Pension Scheme (Equal Treatment) Regulations 1995 (SI 1995/3183).
