Upon the insolvency of their former employer, the claimants suffered reductions in their occupational pension benefits as a result of the application of section 138 Pensions Act 2004 because they had not then reached normal pension age. They complained that this amounted to unlawful age discrimination, being a breach of the non-discrimination rule under section 61 Equality Act 2010 (“EqA”); they argued that the exception allowed under the Equality Act (Age Exceptions for Pension Schemes) Order 2010 (“the 2010 Order”) ought to be disapplied as it was incompatible with general principles of European Union (“EU”) law, alternatively was incompatible with the Council Directive 2000/78/EC (the “Framework Directive”). The ET upheld the claimants’ claims and disapplied the relevant provision of the 2010 Order. The secretary of state (who did not appear before the ET) appealed.

The EAT allowed the appeal in part. The Withdrawal Act provided that the EU Charter would no longer be part of domestic law after the implementation date; 2 Claimants had brought their claims before this date and in their case the appeal was dismissed. However, the other Claimant's claims had been brought after the implementation date and the appeal was allowed in this respect. The EAT also concluded that the ET had found that there was an on-going relationship between the Claimants and the trustee and that the rights of the Claimant had not been permanently fixed prior to the implementation date of the Framework Directive. That was a permissible conclusion in this case.