Equality Act 2010, Schedule 9, paragraph 18

Benefits dependent on marital status, etc

SCHEDULE 9 Work: exceptions

18 (1) A person does not contravene this Part of this Act, so far as relating to sexual orientation, by doing anything which prevents or restricts a person who is not [F327within sub-paragraph (1A)F327] from having access to a benefit, facility or service—

(a) the right to which accrued before 5 December 2005 (the day on which section 1 of the Civil Partnership Act 2004 came into force), or

(b) which is payable in respect of periods of service before that date.

[F328 (1A) A person is within this sub-paragraph if the person is—

(a) a man who is married to a woman, or

(b) a woman who is married to a man, or

(c) married to a person of the same sex in a relevant gender change case.

(1B) The reference in sub-paragraph (1A)(c) to a relevant gender change case is a reference to a case where—

(a) the married couple were of the opposite sex at the time of their marriage, and

(b) a full gender recognition certificate has been issued to one of the couple under the Gender Recognition Act 2004.F328]

[F329 (1C) Sub-paragraph (1) does not apply in relation to access to a benefit payable under an occupational pension scheme to the surviving spouse or surviving civil partner of a deceased member or deceased pension credit member of the scheme.F329]

(2) A person does not contravene this Part of this Act, so far as relating to sexual orientation, by providing married persons and civil partners (to the exclusion of all other persons) with access to a benefit, facility or service.

Definitions used in Schedule 9, paragraph 18 5

man

“man” means a male of any age;

Defined in s.212(1) · see it in the full Act
woman

“woman” means a female of any age.

Defined in s.212(1) · see it in the full Act
occupational pension scheme

“occupational pension scheme” has the meaning given in section 1 of the Pension Schemes Act 1993 ;

Defined in s.212(1) · see it in the full Act
Member

(10) “Member”, in relation to an occupational pension scheme, means an active member, a deferred member or a pensioner member (within the meaning, in each case, given by section 124 of the Pensions Act 1995 ).

Defined in s.212(10) · see it in the full Act
pension credit member

(11) “Employer”, “deferred member”, “pension credit member”, “pensionable service”, “pensioner member” and “trustees or managers” each have, in relation to an occupational pension scheme, the meaning given by section 124 of the Pensions Act 1995 .

Defined in s.212(11) · see it in the full Act

Cases considering Schedule 9, paragraph 18 4

For Women Scotland Ltd v The Scottish Ministers

[2025] UKSC 16 · 16 April 2025Interprets

The express treatment of relevant gender-change marriages shows that Parliament referred specifically to certificate consequences where intended, while using man and woman biologically. (see paras [181]-[182])

Walker v Innospec Limited and others

[2017] UKSC 47 · 12 July 2017Disapplies

The exception permitting restriction of pension benefits by reference to pre-5 December 2005 service was incompatible with the Framework Directive where it authorised unequal future survivor’s pension payments. It had to be disapplied to that extent (see paras [20]-[21]; [72]-[76]). The provision could not lawfully authorise restriction of future survivor’s benefits because the underlying service occurred before 5 December 2005. The restriction conflicted with the Framework Directive (see para [72]). The appellant did not fall within the categories specified by this provision (see para [21]).

O'Brien v Ministry of Justice

[2015] EWCA Civ 1000 · 6 October 2015Limits

The court held that Schedule 9 paragraph 18 was clearly intended to prevent sexual-orientation discrimination claims concerning pension benefits accrued from service before 5 December 2005 and was compatible with the Framework Directive (see paras [32]-[35]; [47]-[48]). The court applied the exclusion for benefits whose right accrued before 5 December 2005 or which were payable in respect of earlier service. It concluded that the provision prevented the claim based on Mr Walker’s completed pre-commencement service (see paras [32]-[35]). The court treated the definition of persons within the protected exception as excluding Mr Walker, because he was not married to a person of the opposite sex and his service predated the relevant statutory change (see paras [32]-[35]).

1 more judgment, and what each says about Schedule 9, paragraph 18, are in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F327Words in Sch. 9 para. 18(1) substituted (13.3.2014 for specified purposes) by Marriage (Same Sex Couples) Act 2013 (c. 30), s. 21(3), Sch. 4 para. 17(2); S.I. 2014/93, art. 3(j)(iii) text substituted for certain specified purposes only, see the commentary. Note: in some cases two versions of the measure may be present: the original version and substituted version.
  2. F328Sch. 9 para. 18(1A)(1B) inserted (13.3.2014 for specified purposes) by Marriage (Same Sex Couples) Act 2013 (c. 30), s. 21(3), Sch. 4 para. 17(3); S.I. 2014/93, art. 3(j)(iii) text inserted for certain specified purposes only, see the commentary.
  3. F329Sch. 9 para. 18(1C) inserted (coming into force in accordance with reg. 1(b) of the amending S.I.) by The Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023 (S.I. 2023/1308), reg. 4 this amendment (inserted text) is marked as yet to come into force, see the commentary.