The Court of Appeal has decided to refer to the Court of Justice of the European Union the question of when the "Barber window" was closed in a case where there was a gap of almost five years between the date of the announcement to members telling them that benefits would be equalised and the date of the deed of amendment dealing with equalisation. The scheme's amendment power stated that amendments could take effect retrospectively from the date of any prior written announcement to members.
Safeway v Newton is an equalisation case regarding the date on which the "Barber window" closed. The case of Barber established the principle that differing retirement dates for men and women breach EU law. Subsequent cases established the principle that for accrual from 17 May 1990, the date of the Barber judgment, until benefits have been equalised, benefits accrue on the more favourable basis. This period is often referred to as the "Barber window".
In 1991 the Safeway scheme's Normal Pension Age (NPA) was 65 for men and 60 for women. The Scheme's amendment power required amendments to be by deed. The power stated that the amendment could take effect retrospectively from the date of any prior written announcement to members. In September 1991 the employer and trustees wrote to members to tell them that NPA would be 65 for all members from 1 December 1991. From 1 December 1991, the scheme was administered on the basis that NPA had been equalised at 65. No deed of amendment relating to the change was executed until 2 May 1996. The deed provided that the equalisation of NPAs was effective from 1 December 1991. In the High Court, the judge held that the Barber window was not closed until 2 May 1996 when the deed was executed. Safeway appealed.
On the question of when the amendment was made, the Court of Appeal agreed that no amendment was made until 2 May 1996. However, that raised the issue of whether (a) the Barber window only closed on 2 May 1996 because EU law prevents retrospective levelling down of benefits; or (b) when the deed was executed, it closed the Barber window retrospectively from 1 December 1991, as any other conclusion would amount to improving the position of all members rather than simply "levelling up" the disadvantaged sex. The Court of Appeal has decided to refer this issue to the EU Court of Justice.
It is worth noting that section 67 of the Pensions Act 1995 (which came into force in April 1997) now prevents amendments which retrospectively reduce accrued rights. However, the events of the Safeway case took place before section 67 came into force, as did the acts of many schemes which equalised during this period, and where this case may therefore be relevant.