26 June 2008
The Advocate General has decided that rules in a German pension
scheme denying payment of a pension to a spouse more than 15 years
younger than her deceased husband constitutes unlawful age
discrimination. It is likely the European Court will confirm the
decision.
Mrs Bartsch was 16 years younger than her husband, who was a
member of the Bosch Siemens Pension Scheme. She applied for a
widow's pension following his death in 2004. The scheme rejected
her application because she did not satisfy its 15 years younger
age gap. Mrs Bartsch claimed the clause breached the equal
treatment rules of European law.
The Advocate General ruled the age gap clause was age
discriminatory (even though the claim was pre- age discrimination
legislation) as European law covers discrimination arising from
relative ages as well as absolute ages. By excluding a spouse from
any pension the age gap clause was extreme and was not a proper or
necessary way for an employer to limit its pension risk.
The ruling means that schemes that deny pensions to widow/ers
who are several years younger than members will be discriminatory.
However, the more normal terms of UK schemes which provide for
reduced benefits for substantially younger spouses on a sliding
scale are likely to be acceptable.
