Copple & Ors v Littlewoods Plc & Ors

Denying a part-time worker the same contractual right of access to an occupational pension scheme as a full-time worker breaches the equality clause, even if she would not have joined. The detriment is the loss of choice, although financial loss is unnecessary.

A retrospective declaration of membership is discretionary. It should provide a full remedy where the worker would have joined, subject to contributions, but need not be granted to an opt-out worker who would not have joined. Equal treatment does not require more favourable treatment.

Where a worker would have joined but needed time to decide, the declaration should normally run until actual joining. Delay is evidence, not a legal presumption, and all the circumstances must be assessed.

Hundreds of part-time women alleged indirect sex discrimination because they were excluded from the respondents’ occupational pension scheme during specified closed periods. The respondents conceded that the exclusion was unjustified but applied the opt-out principle to women who would not have joined the scheme even if eligible.

The Employment Tribunal granted retrospective declarations for claimants who would have joined and refused them for opt-out claimants. The Employment Appeal Tribunal, in UKEAT/0116/10/ZT, held that the opt-out approach was compatible with EU law. The appeal concerned breach, effective remedies, the proposed extension of the Sorbie principle into open periods, the evidential approach to delay, and an alleged perverse factual finding.

1. Disposition. The principal grounds of appeal failed. Some declarations were nevertheless amended so that, where a claimant would have joined but took time to decide, the declaration covered the period from exclusion until actual joining.
2. Breach and remedy. Under section 1 of the Equal Pay Act 1970, as modified for pension access by regulation 10 of the Occupational Pension Schemes (Equal Access to Membership) Regulations 1976, denying part-time women the contractual right to choose whether to join was a breach of the equality clause. The court rejected the view that absence of financial loss meant there was no breach: the detriment was denial of choice (paras [6], [21]–[22]).
3. The remedy under regulation 12 was discretionary. The principles of effective and deterrent protection in Von Colson v Land Nordrhein-Westfalen [1986] 2 CMLR 430 and Marshall v Southampton and South West Health Authority (No. 2) [1993] ICR 893 did not require a windfall where no loss had been suffered. A woman who would have joined was entitled to a declaration giving full retrospective membership on payment of contributions. An opt-out woman was not, since retrospective benefits would give her more favourable treatment than comparable workers, contrary to National Pensions Office v Jonkman [2007] 3 CMLR 25 (paras [23]–[32]).
4. Open period. Sorbie v Trust House Forte Hotels Ltd [1977] ICR 55 did not justify extending a declaration through an open period when the worker was expressly eligible but chose not to join. Sorbie concerned protection against a detrimental contractual reduction; it did not apply where express equal access replaced an implied term. The proposed extension would compensate choice rather than discrimination. No reference to the CJEU was required (paras [33]–[36]).
5. Interim period. An effective remedy may require the declaration to run until actual joining, rather than only until eligibility. Regulation 12 did not preclude that result. A period of voluntary absence unrelated to discrimination should be excluded, although such cases were expected to be rare (paras [37]–[41]).
6. Evidence and perversity. The tribunal had to decide on the balance of probabilities whether the claimant would have joined, considering all the evidence. Delay or failure to join when eligible could be powerful evidence, but was not a conclusive legal presumption or fixed cut-off. The Employment Tribunal’s finding concerning Ms Smith was not perverse: the high threshold in Yeboah v Crofton [2002] IRLR 634 was not met (paras [42]–[57]).

1. Court of Appeal (Civil Division). Appeal from the Employment Appeal Tribunal. The principal grounds failed, but some declarations were amended; judgment reported at [2011] EWCA Civ 1281.
2. Employment Appeal Tribunal. In UKEAT/0116/10/ZT, the EAT held that the opt-out principle was compatible with EU law and upheld the discretionary refusal of retrospective declarations for women who would not have joined.
3. Employment Tribunal. The Tribunal found unjustified indirect discrimination during the closed periods, granted declarations where claimants would have joined, and refused them for opt-out claimants.