435.This section allows an employment tribunal to declare that in cases where an equality rule or equality clause has been breached in relation to:
scheme membership, the complainant is entitled to be admitted to the scheme from a date specified by the tribunal, although the date cannot be earlier than 8 April 1976;
scheme rights, the complainant is entitled to have any rights which would have accrued under the scheme secured from a date specified by the tribunal, although the date cannot be earlier than 17 May 1990.
436.However, the section prevents a tribunal ordering an award of compensation to the complainant.
437.This section replicates requirements in the Equal Pay Act 1970, as modified by the Occupational Pension Schemes (Equal Treatment) Regulations 1995.
438.The restrictions on dates derive from judgments of the European Court:
for scheme membership: 8 April 1976, the date of the Court’s judgment in Defrenne v Sabena ((C 43/75) [1981]1 All ER 122; [1976] ECR 455). The Court, in holding that the principle of equal pay was directly effective, held that what was Article 119 of the Treaty of Rome (now Article 157 of the Treaty on the Functioning of the European Union) should not be applied to periods of service before the judgment.
for scheme rights: 17 May 1990, the date of the Court’s judgment in Barber v Guardian Royal Exchange Assurance Group ((C 262/88)[1991] 1 QB 344; [1990] ECR I-1889), which established that occupational pensions were pay for the purposes of what was Article 119 of the Treaty of Rome.