Safeway Ltd v Newton & Ors (Rev 1)

The Barber window closes when a measure ending pension sex discrimination is immediate, full, unconditional and legally certain, so members can know and enforce their rights. A statutory rule can satisfy that test; the pension scheme need not amend its text itself. Section 62 of the Pensions Act 1995 deemed every occupational pension scheme to include an equal treatment rule and gave members enforceable rights. Its like-work requirement imposed no additional condition beyond Article 119. Once section 62 took effect, domestic law governed future service and permitted levelling down to a common level. The Barber window therefore closed on 1 January 1996.

Safeway appealed from Warren J’s decision in the Chancery Division, reported at [2016] EWHC 377 (Ch), concerning the equalisation of normal pension ages under an occupational pension scheme. An earlier Court of Appeal judgment, [2017] EWCA Civ 1482, resolved other issues and referred a question to the CJEU. The Grand Chamber subsequently gave judgment in the same litigation, reported at [2020] 1 CMLR 1321.

The remaining issue was whether section 62 of the Pensions Act 1995 closed the Barber window from 1 January 1996. Safeway argued that the statutory equal treatment rule supplied legally enforceable and certain rights. Mr Newton argued that only a measure adopted by the Scheme itself could close the window.

1. Appeal allowed. The Barber window closed with effect from 1 January 1996.
2. The criterion was derived from the CJEU’s judgment in Safeway CJEU [2020] 1 CMLR 1321. A measure ending discrimination under Article 119 had to be immediate, full, unconditional and legally certain. Legal certainty required rights to be sufficiently precise, clear and foreseeable to be known, relied upon and enforced before national courts.
3. A statutory enactment could satisfy that criterion. Section 62 deemed the Scheme to include an equal treatment rule. The rules were therefore to be read as modified by statute. No separate textual amendment by the trustees or employer was required, and it made no difference that the modification was initiated by Parliament.
4. Section 62 went beyond Article 119 by requiring discriminatory terms to be modified so that neither gender was treated less favourably. It provided a full, immediate and unconditional right to enforce equal treatment. The requirement in section 62(3)(a) to establish like work in the same employment was not an additional condition, since it reflected the equal-work requirement inherent in Article 119.
5. Before closure of the window, Article 119 required levelling up because the advantaged class supplied the only valid point of reference. After 1 January 1996, domestic law governed future service and did not prevent levelling down to a common benefit level. Section 65 did not alter that conclusion: its purpose was to facilitate textual conformity of scheme documents, not to show that statutory rights were unenforceable beforehand.

• Court of Appeal (Civil Division). The present further stage of the appeal allowed Safeway’s appeal and held that the Barber window closed on 1 January 1996: [2020] EWCA Civ 869.
• CJEU (Grand Chamber). On a reference from the earlier appeal, the Court held that retrospective equalisation could not remove the protection of Article 119 before effective equal-treatment measures were adopted: [2020] 1 CMLR 1321.
• Court of Appeal (Civil Division). The earlier judgment held that the Scheme’s amendment power could be exercised only by deed, though retrospectively, and referred the outstanding Article 119 issue: [2017] EWCA Civ 1482.
• High Court of Justice, Chancery Division. Warren J held that equalisation had not occurred until the formal deed of 2 May 1996: [2016] EWHC 377 (Ch).