The Occupational Pension Schemes (Equal Treatment) (Amendment) Regulations 2005

PART 3 EQUAL TREATMENT RULE: ARMED FORCES SCHEMES

Application of Part 3

7.—(1) This Part of these Regulations—

(a) applies (with modifications) certain provisions of the Equal Pay Act in relation to the operation of an equal treatment rule in respect of the terms of an occupational pension scheme; but

(b) applies only to schemes which are armed forces schemes(1).

(2) The modifications of the Equal Pay Act made by this Part of these Regulations apply to proceedings in respect of the terms of an armed forces scheme if the proceedings are instituted on or after the commencement date (subject to paragraph (3)).

(3) Those modifications do not so apply if the last day of the woman’s period of service (to which the scheme relates) in the armed forces falls more than nine months before the commencement date.

Operation of equal treatment rule on armed forces schemes

8.—(1) Section 7A of the Equal Pay Act (service pay and conditions) shall have effect, in relation to the operation of an equal treatment rule in respect of an armed forces scheme, as if it were modified as follows (see also regulations 10 and 11 which make further modifications to deal with different cases).

(2) Omit subsections (1) and (2).

(3) For subsections (3) and (4) substitute—

“(3) Any claim in respect of the contravention, in respect of a woman, of a term of an armed forces scheme which—

(a) relates to the terms on which—

(i) persons become members of the scheme, or

(ii) members of the scheme are treated; and

(b) is modified or included by an equal treatment rule,

may be presented by way of a complaint to an employment tribunal under this section (and may not be presented by way of a complaint to an employment tribunal under section 2 above).

(4) Subsections (5) to (10) below apply in relation to any claim by a woman (“the claimant”) arising from a contravention of a term of a scheme referred to in subsection (3) above.”.

(4) For subsection (10) substitute—

“(10) Section 2A above shall apply in relation to a complaint in respect of the claim as it applies to a complaint presented to an employment tribunal under section 2(1) above, but with the substitution for any reference to section 1(2)(c) above of a reference to section 62(3)(c) of the Pensions Act 1995 (the equal treatment rule).”.

(5) In subsection (12), after the definition of “armed forces”, insert—

““armed forces scheme” has the same meaning as in the Occupational Pension Schemes (Equal Treatment) (Amendment) Regulations 2005;”.

(6) After subsection (13) insert—

“(14) In the application of this section and sections 7AA to 7AC below to any claim in respect of the contravention of a term of an armed forces pension scheme, expressions used in any of those sections and in the Pensions Act 1995 have the same meaning as in that Act.”.

Definition of “qualifying date”: proceedings relating to armed forces schemes

9.—(1) Section 7AA of the Equal Pay Act (meaning of “qualifying date” under section 7A(8)) shall have effect, in relation to the operation of an equal treatment rule in respect of an armed forces scheme, as if it were modified as follows.

(2) For subsection (1) substitute—

“(1) This section applies for the purpose of determining the qualifying date, in relation to relevant proceedings on a complaint in respect of a woman, for the purposes of section 7A(8) above.

(1A) In subsection (1) above “relevant proceedings” means proceedings in respect of the terms on which—

(a) persons become members of an armed forces scheme, or

(b) members of an armed forces scheme are treated.”.

(3) In subsection (2), in the definitions of “concealment case” and “disability case”, for the words “the employer” substitute “the employer or the managers of the armed forces scheme”.

Claims relating to contraventions of terms as to admission or treatment

10.—(1) In the case of a claim that—

(a) is made in respect of a contravention of a term of an armed forces scheme that relates to the terms on which—

(i) persons become members of the scheme, or

(ii) members of the scheme are treated, and

(b) does not fall within regulation 11,

section 7A of the Equal Pay Act shall have effect as if it were further modified as follows.

(2) For subsection (9) substitute—

“(9) A woman shall not be entitled, in proceedings on a complaint in respect of the claim, to be awarded any payment by way of arrears of benefits or damages or any other financial award.

(9A) A court or employment tribunal which finds that there has been a contravention of a term which is modified or included by an equal treatment rule may—

(a) where the contravention relates to the terms on which persons become members of an armed forces scheme (including any terms concerning the age or length of service needed for becoming a member of the scheme), declare that a woman has the right to be admitted to the scheme with effect from such date as the court or employment tribunal may specify provided that, in any case, that date is not earlier than 8th April 1976;

(b) where the contravention relates to the terms on which members of an armed forces scheme are treated, declare that a woman who is a member has a right to equal treatment in respect of such a period as the court or employment tribunal may specify provided that, in any case, that period does not begin before 17th May 1990.

(9B) Where a declaration under subsection (9A)(b) above relates to any period falling before the date of the declaration, the employer shall provide to the armed forces scheme such additional resources (if any) as may be necessary for the scheme to secure to the member, without contribution or further contribution by the member or by other members of the scheme, the same accrued rights in respect of the period falling before the date of the declaration as if that member had been treated equally in respect of that period.”.

Claims by pensioner members relating to contraventions of terms as to treatment

11.—(1) In the case of a claim that—

(a) is made in respect of a contravention of a term of an armed forces scheme that relates to the terms on which members of the scheme are treated; and

(b) is made by a pensioner member,

the following provisions of the Equal Pay Act shall have effect as if they were modified (or, in the case of section 7A, further modified) as follows.

(2) In section 7A for subsection (9) substitute—

“(9) A woman who is a pensioner member shall not be entitled, in proceedings on a complaint in respect of the claim, to be awarded any payment by way of arrears of benefits or damages or any other financial award—

(a) in proceedings in England and Wales, in respect of a time earlier than the arrears date (determined in accordance with section 7AB below);

(b) in proceedings in Scotland, in respect of a time before the period determined in accordance with section 7AC below.

(9A) Where a court or employment tribunal awards a payment by way of arrears of benefits or damages, or makes any other financial award, the employer shall provide any such resources to the armed forces scheme as are specified in subsection (9B) below.

(9B) The resources referred to in subsection (9A) above are such additional resources, if any, as may be necessary for the scheme to secure to the pensioner member the payment of the amount awarded or other financial award made, without contribution or further contribution by the pensioner member or by other members of the scheme.”.

(3) In section 7AB (“arrears date” in proceedings in England and Wales under section 7A(9))—

(a) for subsection (1) substitute—

“(1) This section applies for the purpose of determining the arrears date, in relation to an award of any payment by way of arrears of benefits or damages or any other financial award in relevant proceedings in England and Wales in respect of a woman, for the purposes of section 7A(9)(a) above.

(1A) In subsection (1) above “relevant proceedings” means proceedings on a complaint in respect of the terms on which members of an armed forces scheme are treated.”; and

(b) in subsection (2), in paragraph (a) of the definition of “concealment case” for the words “the employer” substitute “the employer or the managers of the armed forces scheme”.

(4) In section 7AC (determination of “period” in proceedings in Scotland under section 7A(9))—

(a) for subsection (1) substitute—

“(1) This section applies, in relation to an award of any payment by way of arrears of benefits or damages or any other financial award in relevant proceedings in Scotland in respect of a woman, for the purposes of determining the period mentioned in section 7A(9)(b) above.

(1A) In subsection (1) above “relevant proceedings” means proceedings on a complaint in respect of the terms on which members of an armed forces scheme are treated.”; and

(b) in subsection (2)(a), for the words “the employer or any person acting on his behalf” substitute “the employer, the managers of the armed forces scheme or any person acting on his or their behalf.

(1)

Section 63(4) of the Pensions Act 1995 applies (with modifications) certain provisions of the Equal Pay Act 1970 in relation to the operation of an equal treatment rule in respect of an occupational pension scheme. Section 63(5) confers power on the Secretary of State to provide for the Equal Pay Act 1970 to have effect in relation to an equal treatment rule subject to further modifications. Such provision has already been made by S.I. 1995/3183 in relation to occupational pension schemes which are not armed forces pension schemes.