Much of our pensions legislation is derived from EU Directives or ECJ decisions, particularly that relating to equality and final salary scheme funding. Brexit would mean such legislation would no longer be subject to European jurisdiction, and Parliament could repeal any law it chooses. Brexit would thus enable the UK to amend pension legislation, potentially reducing member protections over time.
Following the ECJ’s decision in Barber v Guardian Royal Exchange on 17 May 1990, pension schemes were required to equalise the retirement age for men and women from that date. In addition, following legislation implemented under the Equality Directive, any age-related contribution rate structure must fall within narrow statutory limits set out in the Equality Act 2010. In 2015, in a case concerning civil partners, the Court of Appeal held that the survivor’s pension entitlement must comply with the EU law in force during the member’s service, so the exemption in the Equality Act 2010 was compatible with the Framework Directive. This meant that the survivor’s pension could be restricted to reflect the date that the relevant UK law came into force.
Although it is unlikely that equality legislation would be repealed as an immediate consequence of Brexit, the UK courts would have greater interpretative freedom, leading to a possible divergence between EU and UK law over time.