The long-running case concerned the date on which the Safeway occupational pension scheme for employees was equalised at 65 years old for both women and men (it was previously 60 for women and 65 for men).
The Barber window refers to the 1990 case of Barber v Guardian, after which all occupational pension schemes were required to have equal retirement ages for men and women. Schemes were told to set a date for levelling up, and were to grant both sexes the more generous policy during the period between the judgment and that date (the Barber window).
Safeway made a written announcement that, from December 1991, the pension age for both sexes was 65. However, it did not issue a written deed to implement the change until May 1996. One issue in Safeway v Newton & Safeway Pension Trustees [2020] EWCA Civ 689 was whether the benefits were equalised in December 1991 or May 1996.
On referral to Luxembourg, however, the European Court of Justice ruled the Barber window did not close until a change in domestic law brought about enforceable rights and remedies.
Handing down judgment this week, the Court of Appeal held s 62 of the Pensions Act 1995, which came into force on 1 January 1996, had effectively closed the Barber window from that date.
Giving the lead judgment, Lord Justice Floyd said: ‘Even if EU law requires the scheme itself to be modified, s 62 has this effect.
‘It cannot make a difference that the modifications are initiated by Parliament rather than the administrators of the scheme… The closure of the Barber window is defined by the point at which domestic law provides legally enforceable and certain rights for members to enforce.’
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