Copple v Littlewoods plc

Exclusion of part-time employees from an occupational pension scheme may breach the equality clause even where the scheme is voluntary. However, the statutory pension remedy remains discretionary. A claimant who would never have joined the scheme during the exclusion period has suffered no compensable loss and is not entitled to a declaration of admission. Evidence of later conduct may be used to determine what the claimant would probably have done earlier. Where a claimant would have joined, the declaration should ordinarily cover only the period during which discriminatory exclusion operated. Once access is opened, the discriminatory term is replaced by an express term permitting membership. The discretionary declaration remedy is compatible with European Union law.

Nine sample claimants appealed from a decision of the Leeds Employment Tribunal concerning historic exclusion of part-time employees from Littlewoods’ occupational pension scheme. The exclusion had a disproportionate impact on women and was not justified. Some claimants would have joined had access been available; others, described as “opters”, would not.

The Employment Tribunal granted declarations for claimants who established that they would have joined during the closed period, but refused relief to the opters. It also limited successful declarations to the period before the scheme became open to the relevant claimant. The central questions were whether discriminatory exclusion alone entitled an opter to retrospective admission, and whether a declaration continued after access became available.

1. Appeals dismissed. The Employment Tribunal correctly refused declarations to claimants who would not have joined the voluntary scheme during the closed period, and correctly confined successful declarations to that period.
2. The exclusionary rule breached the equality clause because it denied part-time employees the same contractual access to the pension scheme as comparable full-time employees. That breach did not depend on proof of loss. The question of loss arose at the remedial stage.
3. The tribunal was entitled to examine evidence of conduct during the open period when deciding whether a claimant would probably have joined during the earlier closed period. Later non-membership was powerful evidence, but not conclusive. The tribunal had to consider the evidence as a whole and any explanation for delay.
4. Under the modified Equal Pay Act 1970 regime and the Occupational Pension Schemes (Equal Access to Membership) Regulations 1976, the remedy for unequal pension access was a discretionary declaration, together with any necessary funding order. Damages or arrears were unavailable. European Union law required effective reparation for loss and damage, but did not require valuable relief where the claimant had suffered no loss.
5. The reasoning in Bilka and the related European authorities concerned schemes that were compulsory for full-time employees and therefore involved actual loss of pension pay. It did not require retrospective admission to a voluntary scheme for a claimant who would not have joined.
6. Once the scheme became open to a claimant, the discriminatory exclusion ceased. The implied equality term was then matched by an express contractual right of access. A declaration could not continue merely because the claimant delayed joining.
7. The Equality Act 2010 did not apply retrospectively to exclusions ending before its commencement. The later amendments to indirect discrimination did not remove the need for evidence of detriment or damage relevant to the remedy.

• Employment Appeal Tribunal: dismissed the appeals and upheld the Leeds Employment Tribunal’s refusal or limitation of declarations.
• Employment Tribunal, Leeds: found that the exclusion of part-time employees was indirectly discriminatory, granted declarations to claimants who would have joined the scheme, and refused relief to claimants who would not have joined.