The Equality Act 2010 contains a dispensation for occupational pension schemes, which allows them to calculate dependants’ pensions for surviving civil partners based only on service since December 2005, plus an addition of 50% of the GMP accrued by the member between April 1988 and December 2005. From next Summer, same-sex couples will be able to marry and, under current legislation, the same dispensation will be available in respect of surviving same-sex spouses.
If the rules of a scheme do not require the Trustees to pay more than the minimum death benefits on the death of a member in a civil partnership, it would be consistent for them to take the same approach to same-sex marriages. It should be noted, however, that scheme rules will need amendment to permit the payment of a spouse’s post-88 GMP to the surviving spouse of a same-sex marriage (since the requirement to pay those benefits to a same-sex survivor does not override scheme rules).
Furthermore, an employment tribunal case last November opened the question of whether the dispensation is consistent with EU law that prohibits discrimination on the grounds of sexual orientation. Therefore the Government is now carrying out a review into this issue, to be completed by 1 July 2014. Trustees should be aware of the possibility that this review will remove the dispensation and require death benefits for same-sex spouses to be calculated on the same basis as those for opposite-sex spouses.