Age gap clauses are discriminatory

18 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 constitute unlawful age discrimination.  It is likely the European Court of Justice 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 age gap clause - she had to be no more than 15 years younger than her husband.  Mrs Bartsch claimed the clause breached the equal treatment rules of European law.

The Advocate General ruled that:

  • she had no claim for age discrimination under German law.  This was because when her husband died, the deadline for Germany implementing the European Directive banning age discrimination had not passed;
  • the age gap clause was age discriminatory once the period for implementing the directive had expired.  European law covers discrimination arising from relative ages as well as absolute age;
  • 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. 

Birgit Bartsch v. Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH (G-427/06); 22 May 2008

 

Contacts

If you would like further information on this subject please get in touch with your usual contact or:

Alan Jarvis,
Partner, Employment & Pensions T: +44 (0)20 7246 7038

Elmer Doonan,
Partner, Employment & Pensions T: +44 (0)20 7246 7151

Andrew Patten,
Partner, Employment & Pensions T: +44 (0)20 7246 7306

Karen Prince,
Senior Professional Support Lawyer, Employment & Pensions T: +44 (0)20 7246 7471


Author/Editor