Quirk v Burton Hospitals NHS Trust

The Barber temporal limitation applies where unequal pension benefits result from a retirement-age condition that varies according to sex. The critical distinction is between access to membership of an occupational pension scheme and the level of benefits calculated under it. Where a worker has access to the scheme and complains about the period of service counted for early-retirement benefits, the complaint concerns benefit level, not access. Benefits attributable to employment before 17 May 1990 are excluded from the Article 119 equal-pay comparison by the Barber Protocol. Such differences do not constitute actionable sex discrimination under Article 119.

Mr Quirk, a male nurse, belonged to the National Health Service Pension Scheme and had contributed since 1963. Under the earlier 1980 Regulations, female nurses could retire at 55 with an immediate pension, whereas male nurses had to wait until 60. The 1995 Regulations equalised future retirement treatment but calculated a male member’s early-retirement benefits only by reference to service on or after 17 May 1990.

The Employment Tribunal rejected his claim for a declaration of equal pension treatment, and the Employment Appeal Tribunal dismissed his appeal. The issue before the Court of Appeal was whether the temporal limitation established in Barber applied, or whether the claim was an access case requiring account to be taken of pre-17 May 1990 service.

1. Appeal dismissed. The Employment Tribunal had made no error of law, and the Employment Appeal Tribunal was correct to uphold its decision.
2. Per Lord Justice Mummery, the claim concerned the level of pension benefits, not access to the National Health Service Pension Scheme. Mr Quirk had full access to the Scheme and, like female members, could retire at 55. His complaint was that pre-17 May 1990 service was excluded when his early-retirement pension was calculated. That was the type of age-related sex discrimination falling within Barber.
3. The access cases, including Vroege, Dietz and Magorrian, concerned denial of admission to a scheme or special class within it. They did not require the temporal limitation to be disregarded where the complaint concerned benefit calculation within a scheme. Magorrian was materially different and did not disturb the special rule for age-related discrimination established in Barber.
4. Lord Justice Buxton agreed. He stated that the more accurate question was whether the discrimination involved an age condition varying according to sex. The access authorities required equal admission to the relevant scheme, which Mr Quirk had received. The retirement-age rules operated within the Scheme and were not an artificial separate scheme from which he had been excluded.
5. The Barber Protocol confirmed the result. Benefits under occupational social security schemes attributable to employment before 17 May 1990 were not remuneration for Article 119 purposes. The female comparator’s pension therefore had to be treated, for that comparison, as excluding the pre-cut-off element. There was consequently no unlawful inequality under Article 119.
6. Lord Woolf CJ agreed with the judgments of Mummery and Buxton LJJ. The appeal was dismissed, there was no order as to costs, and leave to appeal was refused.

• Court of Appeal: Appeal from the Employment Appeal Tribunal dismissed. No error of law was found in the Employment Tribunal’s refusal to grant the declaration sought. No order as to costs; leave to appeal refused.
• Employment Appeal Tribunal: On 12 January 2001, dismissed Mr Quirk’s appeal from the Employment Tribunal and granted permission to appeal to the Court of Appeal.
• Employment Tribunal: In extended reasons sent on 16 June 1999, unanimously refused a declaration of equal pension entitlement, holding that the Barber temporal limitation permitted the pre-17 May 1990 disparity in benefit calculation.