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14th November 2011

Part-timers refused remedy in pension equal pay case

In Copple & Ors v Littlewoods Plc & Ors [2011] EWCA Civ 1281 the Court of Appeal has rejected an appeal by female part-time workers who asserted that their employer's pension scheme indirectly discriminated against part-timers on grounds of sex by denying them access to that scheme when it was the workers whom had not yet decided to “opt-in”.  The Claimants had been denied the right to access the Respondent’s voluntary pension scheme because they worked part-time. This exclusion had a disproportionate impact on women, and thus contravened the Equal Pay Act 1970. Eventually Littlewoods removed any exclusion from joining the pension scheme.  Some of the Claimants obtained a declaration from the Employment Tribunal which required the Respondent to admit them to the pension scheme for the period for which they had been denied access. The declarations did not include the periods in which they could have joined, but did not join, the scheme. The Claimants appealed and sought a declaration they be admitted to the scheme for the period following Littlewoods removal of the exclusion but during which they had not joined. The EAT rejected the appeal, stating that to allow the declaration to continue up until the time the Claimants actually joined the scheme would be to place them in a better position than a male full-timer whose contract at all times included a term that he could join the scheme but who never did. They appealed again.  The Court of Appeal upheld the established approach and concluded that, even if Littlewoods exclusion was in breach of anti-discrimination legislation, the Claimants were not entitled to any remedy due to the simple fact that they had not joined the pension scheme when they became eligible to do so and as such they had suffered no loss.