A gay man has lost his appeal court bid to win his husband the same pension rights a wife would enjoy if he was in a heterosexual relationship.

Three appeal judges unanimously ruled that the claim brought by John Walker, 62, failed because it applied to a period before gay civil partnerships were recognised by the law.

The judges – Lord Dyson, master of the rolls, sitting with Lord Justice Lewison and Lord Justice Underhill – rejected Walker’s complaint that he and his partner were victims of discrimination and human rights breaches.

Underhill said: “I can understand that Mr Walker and his husband will find this conclusion hard to accept. But changes in social attitudes and the legislation that embodies those changes, cannot fully undo the effects of the past.”

Walker retired from chemicals group Innospec in 2003 after 23 years’ employment. He began living with his partner, a 49-year old former computer executive, in September 1993 and wanted to ensure that, should he die first, his husband would be adequately provided for.

He launched legal action against Innospec, arguing it was failing to treat surviving same-sex spouses and civil partners the same as the widows or widowers in heterosexual marriages.

His lawyers said in written submissions to the appeal court that, if he were to dissolve his same-sex partnership and marry a woman, she would be entitled in the event of his death to approximately £41,000 a year. But the trustees of the Innospec pension scheme would only pay his husband about 1% of that amount.

Walker, who was represented in court by the human rights group Liberty, said: “It is utterly reprehensible that Innospec – a large, successful company with a pension fund surplus – is unwilling to follow the example of the vast majority of major British companies in giving homosexual partners exactly the same spousal benefits as heterosexuals.

“I gave them more than two decades of service. I paid exactly the same contributions as my heterosexual colleagues. Yet my husband – with whom I have lived for over 20 years – will be entitled to nothing from the company on my death.

“If I were married to a woman, or if I divorced my husband and married a woman, she would be entitled to a full spousal pension. How can this constitute anything other than the most flagrant discrimination?”

When the case first came before the court, the UK government estimated that full equalisation of pension rights would cost about £3.3bn and have complex implications for pension schemes.



A European framework directive on equal treatment required the UK to bring in measures, by 2 December 2003, designed to combat discrimination on a number of grounds, including sexual orientation. The Civil Partnership Act 2004 came into force on 5 December 2005, and Walker and his partner registered a civil partnership in January 2006, which was recently converted into a marriage.

An employment tribunal in Manchester ruled in 2012 that the Innospec scheme contravened both EU law and the European convention on human rights.



But last year Innospec appealed to the employment appeal tribunal with support from the Department for Work and Pensions. Allowing the appeal, EAT ruled an exemption in the Equality Act 2010 disapplied pension rights accrued by Walker before 5 December 2005 – when the Civil Partnership Act 2004 came into force – and required benefits to be provided equally to civil partners and married couples.

The tribunal held those rights did not have retrospective effect or allow inequalities in pay based on sexual orientation before the date to be addressed.

Walker’s lawyers asked the appeal judges to set aside the EAT ruling on the grounds it was contrary to the EU equal treatment directive. Rejecting his plea, Lewison said: “It does not seem to me that the pension trustees can be required to confer on Mr Walker a benefit to which he is not entitled.”

The benefit he was claiming was part of his pay earned incrementally during his period of service “at a time when the discriminatory treatment of which he claims was lawful”. The judge said he agreed with the DWP that “the principle of ‘no retroactivity’ means that the conduct which was lawful when it occurred cannot retroactively become unlawful”.

Alastair Meeks, pensions partner at law firm Pinsent Masons, said: “Whilst the secretary of state has the power to change the law for the purpose of eliminating or reducing the differences in survivors’ benefits, the outcome of the Innospec v Walker appeal may deter the government from taking any action now.

“The original EAT decision was controversial, and many pension schemes had voluntarily chosen to treat civil partnerships in exactly the same way as opposite sex marriages.



“However, the cost to schemes of providing fully equalised benefits could be substantial – government estimates in excess of £3bn between private and public sector pension schemes have been reported, although there are also concerns that these figures may be underestimated.”

Meeks added that schemes not providing fully equalised benefits to civil partners “are looking increasingly out of touch”.