(1)If an occupational pension scheme does not include a sex equality rule, it is to be treated as including one.
(2)[F73 Where this section applies by virtue of section 64(1),F73] a sex equality rule is a provision that has the following effect—
(a)if a relevant term is less favourable to A than it is to B, the term is modified so as not to be less favourable;
(b)if a term confers a relevant discretion capable of being exercised in a way that would be less favourable to A than to B, the term is modified so as to prevent the exercise of the discretion in that way.
[F74 (2A)Where this section applies by virtue of section 64(3), a sex equality rule is a provision that has the following effect—
(a)if, by virtue of the application of the guaranteed minimum pension provisions, a relevant term is less favourable to A than it would be if A were of the opposite sex, the term is modified so as not to be less favourable;
(b)if, by virtue of the application of those provisions, a term confers a relevant discretion capable of being exercised in a way that would be less favourable to A than it would be if A were of the opposite sex, the term is modified so as to prevent the exercise of the discretion in that way.
(2B) “Guaranteed minimum pension provisions” means so much of the Pension Schemes Act 1993 and of any other enactment as relates to guaranteed minimum pensions (within the meaning of that Act). F74]
(3)A term is relevant if it is—
(a)a term on which persons become members of the scheme, or
(b)a term on which members of the scheme are treated.
(4)A discretion is relevant if its exercise in relation to the scheme is capable of affecting—
(a)the way in which persons become members of the scheme, or
(b)the way in which members of the scheme are treated.
(5)The reference in subsection (3)(b) to a term on which members of a scheme are treated includes a reference to the term as it has effect for the benefit of dependants of members.
(6)The reference in subsection (4)(b) to the way in which members of a scheme are treated includes a reference to the way in which they are treated as the scheme has effect for the benefit of dependants of members.
[F75 (7)If the effect of a relevant matter on a person (A) differs according to the effect it has on a person of the same sex as A, according to whether A is married, in a civil partnership, or for some other reason due to A’s family status, a comparison for the purposes of this section of the effect of that matter on persons of the opposite sex must be with a person of the opposite sex to A who is in the same position as A and in particular—
(a) where A is married to [F76 , or the civil partner of, F76] someone of the opposite sex, A is to be compared to a person of the opposite sex to A (“B”) where B is married to [F77 or (as the case may be) the civil partner of F77] someone of the opposite sex to B;
[F78 (b)where A is married to, or the civil partner of, someone of the same sex, A is to be compared to B where B is married to or (as the case may be) the civil partner of someone of the same sex as B.F78,F75]]
(8)A relevant matter is—
(a)a relevant term;
(b)a term conferring a relevant discretion;
(c)the exercise of a relevant discretion in relation to an occupational pension scheme.
(9)This section, so far as relating to the terms on which persons become members of an occupational pension scheme, does not have effect in relation to pensionable service before 8 April 1976.
(10)This section, so far as relating to the terms on which members of an occupational pension scheme are treated, does not have effect in relation to pensionable service before 17 May 1990.
227.This section requires that every occupational pension scheme is to have a sex equality rule read into it.
228.The rule requires that men and women are treated equally to comparable members of the opposite sex in relation both to the terms on which they are permitted to join the scheme, and to the terms on which they are treated once they have become scheme members.
229.The rule, insofar as it applies to the terms on which a person is treated once he or she has become a member of the scheme, does not apply to pensionable service before 17 May 1990. This was the date of the European Court’s decision in Barber v Guardian Royal Exchange Assurance Group (C 262/88; [1991] 1 QB 344; [1990] ECR I-1889), which established that occupational pensions were pay for the purposes of what was Article 119 of the Treaty of Rome (now Article 157 of the Treaty on the Functioning of the European Union). Where the application of the rule relates to the terms on which a person becomes a member of the scheme, it has effect from 8 April 1976. This was the date of the judgment in Defrenne v Sabena (C 43/75; [1981]1 All ER 122; [1976] ECR 455), where the Court, in holding that the principle of equal pay was directly effective, indicated that what was Article 119 of the Treaty of Rome should not be applied to periods of service prior to the judgment.
230.Where there has been a breach of a term modified by a sex equality rule, proceedings may be brought against the person responsible for the breach under Part 9 of the Act.
231.The section replaces equivalent equal treatment provisions in section 62 of the Pensions Act 1995.