[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]
Should a part-timer excluded from a pension scheme by indirect discrimination get damages if, when permitted, she does not choose to join it?
No, says the Court of Appeal, in Copple & Others v Littlewoods Plc & others.
The employer's pension scheme was historically closed to part-timers. Having opened it up to female part-timers, the employer did not permit retrospective pension rights for the 'closed period' to those who hadn't joined within three months of it opening to them. The employer applied the 'opt-out' principle; i.e. if you did not join the scheme when you could, then you would not have joined earlier anyway, so no loss means no remedy.
The Claimants challenged the 'opt-out' principle as incompatible with EU law, by not providing an effective remedy for this discrimination.
The Court of Appeal held that the 'opt-out' principle was compatible with EU law; there was no scope for the 'penal' remedy sought for indirect discrimination. However, the Court of Appeal held that part-timers excluded from the scheme who then joined should be entitled to retrospective pension rights for the closed period and an interim period when the scheme was open to them but before they decided to join, provided that the reason they deferred joining was down to their exclusion in the first place, ensuring that the remedy would fully correct the consequences of discrimination. The length of this "relatively short period" is a question of fact.
The judgment also gave guidance on the approach to the question of when an excluded employee would have joined a scheme if hypothetically permitted, the test being on the balance of probabilities.