The United Kingdom procedural rules governing actions to secure the right to retroactive membership of an occupational pension scheme are contrary to Community law
In 1994 the Court of Justice confirmed that entitlement to membership of an occupational pension scheme fell within the scope of the EC Treaty provisions which guarantee equal pay for men and women, particularly as regards part-time workers. The Court held that workers may rely on those provisions in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme as from 8 April 1976, the date of the Court's first judgment recognising the direct effect of those provisions.
In the United Kingdom, several occupational pension schemes excluded part-time workers from joining them. Between 1986 and 1995, changes were made to those pension schemes to enable part-time workers to become members on the same terms as full-time workers.
Nevertheless, a number of workers instituted proceedings in United Kingdom courts to secure recognition of their right to retroactive membership of those pension schemes for the periods of part-time work completed by them before those changes were made.
Thus, 60 000 actions were brought before United Kingdom courts. Of these, 22 were treated as test cases with a view to disposing of certain preliminary issues of law .
The Equal Pay Act 1970 requires workers to bring actions within a period of six months following cessation of their employment.
Another provision of the act limits to the two years prior to the date on which they instituted proceedings the period for which workers may secure entitlement to retroactive membership of the pension schemes from which they were excluded.
According to the United Kingdom courts, at first instance and on appeal, those two procedural provisions are in conformity with Community law. The House of Lords sought a ruling from the Court of Justice of the European Communities as to the compatibility with Community law of the procedural rules laid down by the United Kingdom legislation.
The Court held, firstly, that Community law does not preclude a national procedural rule which requires that a claim for membership of an occupational pension scheme (from which the right to pension benefits flows) must, if it is not to be time-barred, be brought within six months of the end of the employment to which the claim relates. However, that limitation period must not be less favourable for actions based on Community law than for those based on domestic law.
The Court held, on the other hand, that Community law precludes a national procedural rule which provides that a claimant's pensionable service is to be calculated only by reference to service after a date falling no earlier than two years prior to the date of her claim.
The Court made it clear that the workers concerned will be able to secure retroactive membership of the relevant schemes and payment of the resultant benefits only if they first pay contributions to cover all the periods of part-time employment of which they seek recognition.
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