Safeway Ltd v Newton & Anor [2016] EWHC 377 (Ch)

“The Principal Company may at any time and from time to time with the consent of the Trustees by Supplemental Deed executed by the Principal Company and the Trustees alter or add to any of the trusts powers and provisions of the Scheme including this Trust Deed and the Rules and all Deeds and other instruments in writing supplemental to this Trust Deed and the Deeds specified in the Second Schedule hereto and may exercise such powers so as to take effect from a date specified in the Supplemental Deed which may be the date of such Deed or the date of any prior written announcement to Members of the alteration or addition or a date occurring at any reasonable time previous or subsequent to the date of such Deed so as to give the amendment or addition retrospective or future effect as the case may be.”

“(1) as regards all Members except a 1973 Plan Member from the Revision Date until 30th November 1991, the last day of the month on which the Member attains the age of 65 years if male or 60 years if female and, (2) as regards all Members from 1st December 1991 except a 1973 Plan Member or those who are already Pensioners, Deferred Pensioners or Postponed Pensioners at that date, the date on which the Member attains the age of 65 years;”

“brings you advance news of two significant changes to [the Scheme] which [Safeway and SPTL] intend to introduce with effect from 1st December 1991.”

“A common Normal Pension Age for men and women of 65 – treating men and women differently in employment practices has long been outlawed. Surprisingly, in the pensions arena it has been possible to allow different treatment, especially with regard to pension ages. A recent case in the European Court is set to change all that. See right.”

“have decided that it is right to act now to equalise Normal Pension Age. They are continuing to monitor the situation and will make any further changes which may be required as a result of clarification of the effects of the judgment.”

“Of course, not everyone wants to work up to 65: you may already be dreaming about your retirement at age 60…. So your initial reaction to the change in Normal Pension Age may be one of gloom! However, in keeping with the current practice for male members with a Normal Pension Age of 65, the pension earned for service up to your early retirement will not be reduced for early payment if you retire from service between ages 60 and 65. You will need Company consent and, so that if the Company is more able to comply with your wishes, you must give at least 3 months’ irrevocable notice in writing….”

“ whilst the announcement was primarily a communication from the Group to its employees, it [the 1991 Announcement] was very much a joint statement with the Trustee which had approved the announcement at its meeting on 29 July 1991. I certainly have no doubt that I had the authority of both the Trustee and the Principal Company to make this announcement or, to put it another way, I am absolutely confident that I would not have sent this announcement out without the clear authority and approval of both the Principal Company and the Trustee.”

“It is emphasised that the Trust Deed and Rules are the legal basis of the Safeway Pension and Family Benefits Scheme, and that this announcement is intended only for the purposes of general guidance and information. You should note that the changes described in the leaflet represent an alteration to your Terms and Conditions of employment.”

“This letter is addressed to those employees of the companies listed above who are members or eligible to become members of the Safeway Pension and Family Benefits Scheme (“the Scheme”). The purpose of this letter is to formally confirm that the changes to pension benefits under the Scheme described in the announcement dated 1st September 1991 have been made with effect from 1st December 1991. All such employees should note therefore, that their terms and conditions of employment have been amended from today on the basis outlined in the September announcement.”

“It was certainly my understanding that we had already fully committed ourselves to the equalisation of NPAs at 65 with effect from 1 December 1991, that we had acted and administered the Scheme on that basis and that we were merely giving formal effect to a change that had already taken place”

“1. Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. 2. For the purpose of this article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.”

“…it must be remembered that the principle of equal pay is one of the foundations of the Community and that article 119 creates rights for individuals which the national courts must safeguard. Article 119 being mandatory in nature, the prohibition on discrimination between men and women applies not only to the acts of public authorities but also to all contracts between private individuals and to all collective agreements intended to regulate paid employment: see Defrenne v Sabena (Case 43/75)) [1976] ICR 547, 566, 568, paras 12 and 39.”

“It is precisely the fundamental nature of the principle of equal treatment in the Community legal order that has repeatedly led the Court to interpret narrowly the derogations from it permitted by the Community legislature: see Roberts v. Tate & Lyle Industries Ltd [1986] (Case 151/84) [1986] ICT para. 35; Marshall v. Southampton and South-West Hampshire Area Health Authority (Teaching)(Case 152/84) [1986] ICR 335, para 54 and Beets-Proper v. F. Van Lanschot Bankiers NV (Case 262/84) [1986] ICR 706, para 38.”

“5. Article 119 requires member states to ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. This article is of direct effect and can be relied on by, for instance, employees against employers to secure equality of pay. In the seminal case of [Barber], the Court of Justice of the European Communities stated the application of this provision to pension benefits, in particular deciding that it was unlawful to discriminate between men and women by providing benefits by reference to different ages at which pension becomes payable. It was, as is well known, common for pension schemes to provide different retirement ages for men and women (typically 65 and 60 respectively); the decision in Barber and the requirement to remove this discrimination was a cause of great activity in the period after the judgment of the Court of Justice (which was delivered on 17 May 1990). 6. Because of the uncertainty, partly engendered by certain Community instruments and the decision of the Court of Justice in Newstead v Department of Transport (Case 192/85) [1988] ICR 332, about whether article 119 applies to benefits provided by a contracted-out pension scheme (the scheme in the present case was such a scheme at the time of the amendments in 1993), a temporal limitation was laid down by the Court of Justice in its decision in Barber: as the court put it, overriding considerations of legal certainty required the effects of the judgment to be limited in time. 7. Unfortunately, the scope of that temporal limitation was itself a matter of great uncertainty. Many of the uncertainties were resolved in a series of cases: Van den Akker v Stichting Shell Pensioenfonds (Case C-28/93) [1994] ECR I-4527, [Coloroll], Smith v Avdel Systems Ltd (Case C- 408/92) 1995] ICR 596. These are conveniently reported together at [1994] Pen LR 211. The effect of these cases is summarised by Lewison J in Trustee Solutions Ltd v Dubery [2007] ICR 412, at para 4: “Following subsequent cases, particularly [Coloroll], the effects of the Barber judgment on the requirements for equal treatment of men and women were confirmed as follows: (i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male and female pension benefits to be provided at different retirement ages. (ii) A scheme could be amended so as to equalise benefits for men and women, if the rules of the scheme permitted such amendment. The nature of the amendment could either reduce the normal male retirement age, or increase the normal female retirement age, or both; provided that both sexes were treated equally. (iii) For pensionable service between 17 May 1990 and the operative date of any valid amendment…… male members of a pension scheme were entitled to be treated as if their normal retirement age was the same age as that applicable to female members (usually 60). This period is known, in the jargon, as “the Barber window”.” “Following subsequent cases, particularly [Coloroll], the effects of the Barber judgment on the requirements for equal treatment of men and women were confirmed as follows: (i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male and female pension benefits to be provided at different retirement ages. (ii) A scheme could be amended so as to equalise benefits for men and women, if the rules of the scheme permitted such amendment. The nature of the amendment could either reduce the normal male retirement age, or increase the normal female retirement age, or both; provided that both sexes were treated equally. (iii) For pensionable service between 17 May 1990 and the operative date of any valid amendment…… male members of a pension scheme were entitled to be treated as if their normal retirement age was the same age as that applicable to female members (usually 60). This period is known, in the jargon, as “the Barber window”.”

“8 Article 119 pursues a double aim. 9 First, in the light of the different stages of the development of social legislation in the various Member States, the aim of Article 119 is to avoid a situation in which undertakings established in States which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-Community competition as compared with undertakings established in States which have not yet eliminated discrimination against women workers as regards pay. 10 Secondly, this provision forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasized by the Preamble to the Treaty. 11 This aim is accentuated by the insertion of Article 119 into the body of a chapter devoted to social policy whose preliminary provision, Article 117, marks 'the need to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonization while the improvement is being maintained'. 12 This double aim, which is at once economic and social, shows that the principle of equal pay forms part of the foundations of the Community. 13 Furthermore, this explains why the Treaty has provided for the complete implementation of this principle by the end of the first stage of the transitional period. 14 Therefore, in interpreting this provision, it is impossible to base any argument on the dilatoriness and resistance which have delayed the actual implementation of this basic principle in certain Member States. 15 In particular, since Article 119 appears in the context of the harmonization of working conditions while the improvement is being maintained, the objection that the terms of this article may be observed in other ways than by raising the lowest salaries may be set aside.” 9 First, in the light of the different stages of the development of social legislation in the various Member States, the aim of Article 119 is to avoid a situation in which undertakings established in States which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-Community competition as compared with undertakings established in States which have not yet eliminated discrimination against women workers as regards pay. 10 Secondly, this provision forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasized by the Preamble to the Treaty. 11 This aim is accentuated by the insertion of Article 119 into the body of a chapter devoted to social policy whose preliminary provision, Article 117, marks 'the need to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonization while the improvement is being maintained'. 12 This double aim, which is at once economic and social, shows that the principle of equal pay forms part of the foundations of the Community. 13 Furthermore, this explains why the Treaty has provided for the complete implementation of this principle by the end of the first stage of the transitional period. 14 Therefore, in interpreting this provision, it is impossible to base any argument on the dilatoriness and resistance which have delayed the actual implementation of this basic principle in certain Member States. 15 In particular, since Article 119 appears in the context of the harmonization of working conditions while the improvement is being maintained, the objection that the terms of this article may be observed in other ways than by raising the lowest salaries may be set aside.”

“[19] As a result of this annulment it is incumbent on the Community legislature to draw the conclusions from this judgment by taking suitable measures to establish equality between the sexes as regards Community pension arrangements. In the meantime it is for the Commission to reconsider the plaintiff's request by applying the provisions of the Staff Regulations relating to the widow's pension which at present remain the only valid system of reference.”

“[22] It follows that until such time as the national government adopts the necessary implementing measures women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation since, where the directive has not been implemented, those rules remain the only valid point of reference.”

“[18] It follows from Case C-33/89 cited above, that, where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme as other workers, such scheme remaining, for want of correct application of Article 119 EEC in national law, the only valid system of reference.”

“60. ……… The court’s statement may accordingly be regarded as only having in view discrimination occurring in the past. The fact that, in relation to such discrimination and pending a measure eliminating it, an increase of the lowest salaries is required has been confirmed by more recent case law, particularly since [Razzouk] para 19…… the court has indicated that “the only valid frame of reference” for an immediate implementation of the principle of equal treatment, so long as a scheme is still not adapted to that principle, is to be found in the pension scheme rules in force. That means that, pending new adjusted rules, the rule applicable under the existing scheme provisions to members of the more favoured sex must also be applied to members of the less favoured sex. [Footnote 125: The court applied that criterion in particular in order to ensure application of the principle of equal treatment laid down in article 4(1) of Directive (79/7/E.E.C.) for as long as this Directive is not being implemented, in full, by the national legislature……] As regards the past, or, more precisely, as regards pension benefits which relate to periods of service performed in the past, the principle of equal treatment therefore requires that the benefits of the disadvantaged sex be brought up to the level of those of the advantaged sex.”

“However, in the case of benefits based on new rules adapted to the principle of equal treatment which govern periods of service in the future, the situation is different. Like the Commission, I take the view that Community law does not preclude a reduction of such benefits, so long as those benefits are set at a level which is the same for men and women. To take any other view would entail undesirable Community interference in a policy area which, in the present state of Community law, belongs to the sphere of competency of member states, which, as the court has repeatedly emphasised, “enjoy a reasonable margin of discretion as regards both the nature of the protective measures and the detailed arrangements for their implementation.…..”

“(3) The Trustees of an occupational pension scheme are obliged under article 119 to do everything within their powers in order to ensure that benefits to be paid to employees or those entitled under them comply with the principle of equal treatment laid down in this article. (4) So long as article 119 has not been properly implemented, the pension benefits of the disadvantaged sex must be brought up to the level of those of the advantaged sex [with an exception relating to “periods of service in the future].”

“(f) If notice in writing of any such alteration or modification shall be published in such form and in such manner as the Trustees and the Principal Employer shall agree the trusts powers and provisions of this Deed and of the Rules shall, pending the execution of the Deed or the insertion of the particulars in the Schedule as aforesaid, be deemed to be altered or modified in such manner and to such extent as the Trustees shall determine to give effect to the provisions set out in such notice…..”

“(1) Where an occupational pension scheme has different normal pension ages for men and women (65 and 60 respectively), and where an employer seeks, in the light of [Barber] to eliminate that discrimination, is it inconsistent with article 119 of the EEC Treaty for the employer to adopt a common pension age of 65 for men and women … (ii) in respect of occupational pension benefits received by employees which are based on years of service on or after 17 May 1990, but before the date of equalisation, when the date of equalisation was 1 July 1991 …?”

“Is the raising of the pension age of female employees to that of male employees, in order to comply with the court’s judgment in Barber, compatible with article 119 of the EEC Treaty?”

“9. Although the matter in issue is delicate, my view is that the fundamental answer is quite clear under Community law. A similar question has been referred to the court in [Coloroll] in which the High Court of Justice (Chancery Division) seeks to ascertain whether the implementation of the principle of equal treatment requires that the benefits for the disadvantaged sex be increased in all cases or, on the contrary, whether it is consistent with article 119 for the benefits of the other sex to be lowered: question 1(2)(iii) in that case. In my joint opinion of 28 April 1993 in [Ten Oever] and other cases … , point 60, taking the court's case law as my basis, I drew a distinction between pension benefits according to whether they were based on discrimination occurring in the past (after the judgment in [Barber]) or they were related to service performed after the introduction of new rules adapted to the principle of equal treatment as a result of that judgment. That distinction must also be maintained in the present cases. 10. As regards benefits based on periods of service completed in the past to which discriminatory rules applied, it is necessary, pending rules to abolish such discrimination, to increase the level of benefits of the disadvantaged sex so as to bring it up to that of the advantaged sex. In cases involving sex discrimination the court has consistently held that the more favourable rules must be applied to the less favoured sex, those rules forming “the only valid frame of reference” for immediate implementation of the principle of equal treatment….. 11. The situation is fundamentally different so far as concerns benefits based on new rules adapted to the principle of equal treatment and relating to future periods of service, that is to say periods completed after the entry into force of the rules. [He then repeated much the same as he had said in his Opinion on Coloroll as set out at paragraph 46 above.]…… The court's finding [in Defrenne] may accordingly be regarded as applying only to discrimination in the past, with regard to which the court, as already stated, requires that the more favourable rules should also apply to the less favoured group….” …….”

“14. Next, there is levelling-up of pensionable ages [note that, although the age was raised, the benefit was levelled down] of male and female employees as regards pension benefits acquired by virtue of periods of service completed between 17 May 1990 and the date of levelling-up, which in this case was 1 July 1991. Since these periods of service are posterior to the judgment in Barber, full application must be given to the rule derived from the case law of the court that the principle of equal treatment requires that the rule or rules applying to the more favoured sex (in this case, women) must also be applied to the less favoured sex (in this case men). Unlike the Commission …… I therefore take the view that article 119 of the E.E.C. Treaty does not permit levelling-up of pensionable ages as regards benefits acquired by virtue of those periods of service….. 15. Finally, as regards the levelling-up of pensionable ages for benefits acquired by virtue of periods of service posterior to the date of levelling-up, I would…. agree ….that such a step is not contrary to article 119 of the EEC Treaty, provided at least that it complies in full with the principle of equal treatment.”

“29. .… Community law does, however, preclude such a step [raising pensionable age] in relation to periods of service completed between 17 May 1990 and the date on which pensionable ages are levelled. In the case of the last mentioned periods of service, the principle of equal treatment must be implemented by applying the rules enjoyed by the members of the more favoured sex to members of the less favoured sex.”

“32. It follows that, once the court has found that discrimination in relation to pay exists and so long as measures for bringing about equal treatment have not been adopted by the scheme, the only proper way of complying with article 119 is to grant to the persons in the disadvantaged class the same advantages as those enjoyed by the persons in the favoured class. 33. The situation is different as regards periods of service completed after the entry into force of rules to eliminate discrimination, since article 119 does not then preclude measures to achieve equal treatment by reducing the advantages of the persons previously favoured. Article 119 merely requires that men and women should receive the same pay for the same work without imposing any specific level of pay. …. 36. The answer to be given to the second part of the first question must therefore be that, in so far as national law prohibits employers and trustees from acting beyond the scope of their respective powers or in disregard of the provisions of the trust deed, they are bound to use all the means available under domestic law, such as recourse to the national courts, in order to eliminate all discrimination in the matter of pay. Moreover, as regards periods of service completed after the court's finding of discrimination but before the entry into force of the measures designed to eliminate it, correct implementation of the principle of equal pay requires that the disadvantaged employees should be granted the same advantages as those previously enjoyed by the other employees. However, as regards periods of service subsequent to the entry into force of those measures, article 119 does not preclude equal treatment from being achieved by reducing the advantages which the advantaged employees used to enjoy.…”

“13. It was in order to comply with the Barber judgment that the occupational scheme concerned in the main proceedings adopted the measure now in dispute. In order to do so, it opted for one of the two possible ways of achieving equal treatment: instead of granting men the same advantage as that enjoyed by women and thus lowering their retirement age to that for women, the scheme raised the retirement age for women to that for men, even for the past, including the period prior to the Barber judgment, and as a result the position of women was made less favourable. 14. That being so, the point raised is whether it is permissible, for the purpose of achieving equality, to take away from the favoured class (in this case, women), both for the past and for the future, the advantage enjoyed by that class, the reference date being either the date of entry into force of such a measure (in this case, 1 July 1991) or the date (17 May 1990) of the Barber judgment which identified the discrimination to be eliminated. 15. and 16. [In paragraph 15, the Court made the same points as it had made in Defrenne and Coloroll, in relation to harmonisation, as to which see paragraph 57 above, and in paragraph 16 it again referred to the “only valid point of reference”.] [17] It follows that, once the court has found that discrimination in relation to pay exists and so long as measures for bringing about equal treatment have not been adopted by the scheme, the only proper way of complying with article 119 is to grant to the persons in the disadvantaged class the same advantages as those enjoyed by the persons in the favoured class. 18. Application of this principle to the present case means that, as regards the period between 17 May 1990 (the date of the Barber judgment) and 1 July 1991 (the date on which the scheme adopted measures to achieve equality) the pension rights of men must be calculated on the basis of the same retirement age as that for women. … 21. As regards periods of service completed after the entry into force, in this case on 1 July 1991, of rules designed to eliminate discrimination, article 119 of the Treaty does not preclude measures which achieve equal treatment by reducing the advantages of the persons previously favoured. Article 119 merely requires that men and women should receive the same pay for the same work without imposing any specific level of pay. 22. The answer to the first question must therefore be that article 119 of the Treaty precludes an employer who adopts measures necessary to comply with the Barber judgment from raising the retirement age for women to that for men in relation to periods of service completed between 17 May 1990, the date of that judgment, and the date on which those measures come into force. On the other hand, as regards periods of service completed after the latter date, article 119 does not prevent an employer from taking that step. …”

“34. As far as the right to be a member of an occupational scheme is concerned, Article 119 requires that a worker should not suffer discrimination based on sex by being excluded from such a scheme. 35. This means that where such discrimination has been suffered, equal treatment is to be achieved by placing the worker discriminated against in the same situation as that of workers of the other sex. 36. It follows that the worker cannot claim more favourable treatment, particularly in financial terms than he would have had if he had been duly accepted as a member”

“(1) An occupational pension scheme which does not contain an equal treatment rule shall be treated as including one. (2) An equal treatment rule is a rule which relates to the terms on which (a) persons become members of the scheme, and (b) members of the scheme are treated. (3) Subject to subsection (6), an equal treatment rule has the effect that where (a) a woman is employed on like work with a man in the same employment, (b) a woman is employed on work rated as equivalent with that of a man in the same employment, or (c) a woman is employed on work which, not being work in relation to which paragraph (a) or (b) applies, is, in terms of the demands made on her …. of equal value to that of a man in the same employment, but (apart from the rule) any of the terms referred to in subsection (2) is or becomes less favourable to the woman than it is to the man, the term shall be treated as so modified as not to be less favourable…..”

“(1) The trustees or managers of an occupational pension scheme may, if (a) they do not (apart from this section) have power to make such alteration to the scheme as may be required to secure conformity with an equal treatment rule, or (b) …. by resolution make such alterations to the scheme. (2) The alterations may have effect in relation to a period before the alterations are made.”

“34. The question then identified (see p 627, para 14) was whether it was permissible to take away from the favoured class “the advantage enjoyed” by that class, the reference date being either the “date of entry into force of such measure (in this case 1 July 1991) or the date (17 May 1990) of the Barber judgment.”

“40. The first point [Mr Paines] raises is that the court, in using the phrase “date of entry into force” of the equalising measure, was looking at the date from which it took effect according to its terms. Thus, in [Avdel] itself, that date was 1 July 1991. In the present case, so far as the change in NRD is concerned, the amendment is expressly backdated to 17 May 1990 and that backdating was expressly authorised by the amending power in rule 32. The second point, which goes with it, is that when one reads the 1993 deed and rules after their execution, it can be seen that the benefits accruing for both men and women during the Barber window were based on a common NRD of age 63: because the amending power is expressly retrospective, the amendment takes effect, he says, for all purposes as if the new NRD had actually been in place on 17 May 1990. 41. I reject that interpretation of the judgment in [Avdel]…... [W]hat the court decided was that benefit accrual during the Barber window had to be at the rate appropriate to the advantaged class. It reached that conclusion against the background of the exercise of a power of amendment which resulted, as much for women attaining age 60 after 1 July 1991 as for those attaining that age during the period 17 May 1990 to 1 July 1991, in a reduction of benefits. I am of the firm view, on a proper reading of the judgment, that the court was concerned to look at the (discriminatory) benefits before any change in the rules designed to achieve equalisation had been made and to compare that position with the position which obtained after that change…..”

“43. It is impossible, to my mind at least, to think that the court's approach would have been any different from what it was in [Avdel] in the case of an amendment which, as a matter of form, stated that it was retrospective and was made pursuant to a power of amendment expressly providing for such retrospectivity. In both cases, the apparent benefit provided by the scheme prior to amendment is subject to reduction. The right arising under article 119 prior to the actual amendment, ie the right to equal treatment, is a substantive right. If it is correct that the article 119 right immediately before the making of an amendment can be adversely affected by the exercise of a power where both the power and its exercise are expressed to be fully retrospective then I can see no reason why the same should not apply in the case of the exercise of a power where the power can be, and has in fact been, exercised in a way which is retrospective. There is, in my judgment, no valid distinction for present purposes between the two types of power and their exercise. 44. Another way of making this point is to look at the position immediately before the execution of the 1993 deed and rules in the present case. At that stage, before any attempt has been made to rewrite history by making a retrospective amendment, men are entitled to claim, in respect of service after 17 May 1990, benefits on the same basis as those accruing to women. The question is then asked: can this right which men have be adversely affected, as a matter of Community law, by amendment? The answer to that question cannot, it seems to me, depend on the precise wording of the power under which it is sought to act. The question in all cases, assuming that the amendment is effective under national law, is whether levelling down is permitted. [Avdel] has answered that question in the negative.”

“54. Mr Simmonds says that, on his construction, this is not really a problem because the Trustee knows that, within a reasonably short time, everything will be retrospectively validated. I find that an unsatisfactory answer. I am not attracted, to say the least, by a construction which necessarily involves a Trustee acting other than in accordance with the provisions of the trust even when, in practical terms, any breach can be retrospectively validated. But where the breach cannot be retrospectively validated, such a construction is almost impossible to defend. …. Certainly, when faced with competing constructions one of which does, and one of which does not, involve a breach of trust, I prefer the one which does not in the absence of compelling reasons to the contrary.”

“which may be the date of such Deed or the date of any prior written announcement to Members of the alteration or addition or a date occurring at any reasonable time previous or subsequent to the date of such Deed so as to give the amendment or addition retrospective or future effect as the case may be.”

“The Principal Company may at any time … with the consent of the Trustees by Supplemental Deed … alter … any of … the provisions of the Scheme …” ii) The second part establishes when the changes made by that power take effect: [“the Principal Company] may exercise such powers so as to take effect from a date specified in the Supplemental Deed which may be the date of such Deed or the date of any prior written announcement to Members of the alteration … or a date occurring at any reasonable time previous or subsequent to the date of such Deed so as to give the amendment … retrospective or future effect ….”

“may… authorise the trustee in writing to alter or add to the terms and provisions of the rules in the trust, powers and provisions of this deed, and any such alteration or addition may have retrospective effect. The trustees shall forthwith declare any such alteration or addition to the rules in writing under its hand, or any such alteration or additions to this deed in writing under its hand and seal….. This deed and/or the rules shall stand amended accordingly with effect from the effect [perhaps this should be “date”] of such declaration or from such other date, whether future or past, as is stated in such declaration…..”

“However, Miss Rich argues, one should not be too strict about a further requirement of a separate declaration, because the terms of [the amendment power] effectively requires the trustee to make the amendment and forthwith to declare it, if and when it is so authorised by the principal employer. It appears to me that it cannot have been intended that the trustee would have no power to refuse to do what the principal employer requires, even if it thought it was unlawful or inappropriate. However, even assuming Miss Rich’s argument is correct, the mere fact that it was obliged to put into effect what the principal employer authorised it to do does not alter the fact that it still has to make the appropriate declaration before the alteration can be effective.” 108. In [42] of his judgment, Neuberger J made reference to the proposition that the court should assume that that which had been reported as having been done should be seen as having been done. He did not see that principle as assisting the case. Accordingly, he did not see the obligation of the trustees to amend the scheme as leading to the conclusion that the scheme was to be treated as amended. 109. In [52] of his judgment, Neuberger J considered the effect of the 1996 amending deed. Insofar as it was retrospective, he held that it was invalid. This was because it infringed the proviso protecting accrued benefits. The result was that for the period 26 April 1994 to 22 May 1996, the normal retirement date for both men and women was 60. 110. Mr Short also relies on Dubery. In particular, Lewison J, after referring to Bestrustees said this at [20] of his judgment: “…An avoidance of pedantry, and the need to protect beneficiaries may well be powerful factors in choosing between rival constructions; but once the requirements of a valid means of alteration of the rules has been determined as a matter of construction, either a document satisfies those requirements or it does not….” 111. Mr Short submits that Clause 19 operates perfectly well when construed in accordance with its words. An amendment is made only when a deed is executed; an announcement is relevant to Clause 19 only insofar as it specifies a time as of which the amendment, when made, takes effect. Safeway’s approach, he says, creates uncertainty. For instance, the employer and the trustee might have a change of mind before making the deed giving rise to questions such as whether a further announcement is required and, if so, whether it could have retrospective effect. 112. Mr Short further submits that the absence of any detail regarding the characteristics of an announcement makes Safeway’s approach unworkable and unlikely to have been intended. In particular, a substantive change in the rights of members cannot arise as a result of an announcement of a decision to change benefits with effect from a future event when the announcement itself states, as in the present case, that the Trust Deed and Rules are the legal basis of the Scheme and that the announcement is intended only for the purposes of general guidance and information. Although Mr Green says that a caveat of this nature appearing in small print at the bottom of a page cannot affect the substance of the matter, Mr Short points out that the announcement certainly was intended to have some effect as from 1 December 1991 namely as an alteration to the terms and conditions of employment of members as that same caveat makes clear. 113. Mr Short submits next that, in contrast with Premier Foods and with the power of amendment in Avdel, SPTL is neither required nor entitled to act contrary to the Trust Deed and Rules until they have been changed. In some cases, the change can be implemented under another provision (eg the power to augment benefits). But where that is not possible, Safeway and SPTL have the remedy under their control: they can alter the Scheme by Supplemental Deed in accordance with Clause 19. 114. Once it is appreciated what Clause 19 does mean, it can be understood what it does not mean. It does not mean or entail, Mr Short would say, that an announcement has any relevance, for the purposes of Clause 19, other than to define the period of retrospectivity which can validly be adopted when the actual amendment is made. In particular, it has nothing to say about whether SPTL can properly act in accordance with an announcement rather than in accordance with the (unamended) letter of the Trust Deed and Rules. Indeed, he rejects the suggestion that SPTL would be acting under the trust deed and rules if it were to act on an announcement which had not been reflected in a formal amendment. Clause 19 - discussion 115. As a matter of construction, the meaning of Clause 19 is, at least in these respects, clear and unambiguous: i) An alteration or addition to the trusts powers and provisions of the Scheme must be effected by deed. The power can be used to alter or add to any written instrument supplemental to the Trust Deed and Rules. Although the exercise of the power will result in a textual change to the governing documents, the power is a substantive one because a change to the text will, usually, result in a change to the members’ substantive rights or to administrative provisions. This will not always be so because a textual change might simply reflect a change which has come about in another way, for instance as the result of legislation or because of conduct giving rise to an estoppel as between SPTL and the members. ii) An amendment, when made, can be retrospective to the extent permitted by Clause 19. In contrast with a power where the period of retrospectivity is not expressly restricted (as in Harland v Wolff), the period in the present case is restricted to (i) the date of any prior written announcement or (ii) a reasonable time previous to the amendment. The inclusion of (i) is sensible: it eliminates any dispute about what a reasonable time is and it allows the amendment to take effect from the date of the announcement even where there has been unreasonable delay in making the amendment. Indeed, in the present case, there is a lot to be said for the view that the delay between 1 December 1991 and 2 May 1996 is unreasonable so that reliance needs to be placed on (i) to give the 1996 Deed validity. 116. At paragraph 96 aboveI referred to Mr Green’s rhetorical question about what would have happened if a male member had come along between 1 December 1991 and 2 May 1996 and sought to argue that his NPA was 60 as of right (rather than subject to Safeway’s discretion) in relation to the post-1 December 1991 period, because a supplemental deed had not been executed in the meantime. His answer is that SPTL and Safeway would have been fully entitled to reject such a claim; and they would have been entitled to back up their refusal with a supplemental deed confirming the change of NPA with effect from 1 December 1991 in accordance with the written announcements. 117. I do not disagree with the conclusion that SPTL and Safeway would have been able to make the necessary amendment and thus, retrospectively, to have eliminated the claim. But that is not to say that without the amendment the claim could properly have been rejected. In practical terms, SPTL would be able to refuse to meet the claim by telling the claimant that it would make an amendment in accordance with the announcement. But if and so long as it has failed to make the amendment, the claim is, in my view, a good legal claim. 118. Thus, if for some reason the power of amendment had come to an end or had become subject to restriction prior to its exercise to give effect to the 1991 Notices, the 1991 Notices of themselves would not, in my view, have provided SPTL with any defence against the claim. 119. This is not a fanciful possibility. Suppose, for instance, that section 67 PA 95 had, along with section 62, come into force on 1 January 1996 before the amendment power had been exercised to implement the 1991 Notices. The question would then arise whether the accrued rights of female members were based on an NPA of age 60 or age 65. Clearly, under the wording of the Trust Deed and Rules, a woman’s NPA on 1 January 1996 was age 60. Had section 67 been in force when the 1996 Deed was made, that NPA could not have been reduced in respect of past service. It would not, therefore, have been open to SPTL at that stage to reject a woman’s claim to benefits based on an NPA of age 60 on the footing that it could make an amendment to give effect to the 1991 Notices unless the 1991 Notices had already – and without reference to a potential amendment by deed – effected the change. 120. Mr Green’s position is that the 1991 Notices were indeed effective to produce accrued rights in respect of service after 1 December 1991 which were based on a common NRD of age 65, so that the 1996 Deed did not reduce any rights accrued from that date. In my view, that is not correct. In my judgment, the 1991 Notices did not of themselves bring about a change of the NPA of women. It is only in conjunction with the actual exercise of the amending power by the 1996 Deed that a change in the NPA of women could take effect albeit that the relevant amendment could take effect as a matter of domestic law from the date of the 1991 Notices. 121. In reaching that conclusion, I reject the submission that SPTL was authorised, as a result of the 1991 Notices, to operate the Scheme as if the 1991 Notices had been implemented. I do not agree that SPTL was, pending formal amendment, entitled to act as if the amendment had been made. In my view, SPTL was acting contrary to the provisions of the Trust Deed and Rules. In practice, it was not exposed to risk since the reality would be, if faced with a claim by a woman, that the power of amendment would be exercised with retrospective effect. But it was acting contrary to the Trust Deed and Rules nonetheless. The example I have given in relation to section 67 demonstrates the point. There may be other situations in which the power of amendment could not be exercised: for instance, if the Scheme had gone into winding-up. And if that happened before the 1991 Notices had been formally introduced, SPTL would have to give effect to members’ rights in accordance with the unamended provisions. 122. I reach that conclusion as a straightforward matter of construction. It is reinforced by the following considerations which I have not needed to rely on. 123. First, Mr Green himself has described Clause 19 as being in the nature of a compound amendment power: see paragraph 91 above. The exercise of the compound power is not, I would suggest, complete until the final stage that is to say the making of the deed of amendment. 124. Secondly, quite apart from the situation where the power of amendment is no longer available, there is the possibility of a change of mind by SPTL or Safeway between the making of the announcement and the making of the formal amendment. On the facts of the present case, Mr Green correctly points out that there was no change of mind. That there might be a change of mind on different facts does not give rise to any issue relevant to the present case. 125. I disagree with that last proposition. The meaning of Clause 19 must be judged against realistic scenarios. It cannot, I consider, be suggested that the hypothesis of a change of mind after the making of an announcement – whatever the scope of that announcement – is one which is so unrealistic as to be dismissed. 126. Thirdly, Mr Green asserts that a refusal to execute a supplemental deed in circumstances where an announcement had been and was continuing to be acted upon (as in the present case) would be a breach of duty. It would be a breach of duty because, under Clause 19, the Scheme would have been operated on the basis that such an interim process would be formalised by bringing the rules into alignment with how the Scheme was being run. This however is to beg the question, because it assumes what is in issue, namely that the Scheme would have been operated under Clause 19. True it is that the Scheme would have been operated in accordance with the announcement; but the very issue is whether Clause 19 of itself authorises a departure from the Trust Deed and Rules otherwise than by retrospective validation. 127. Fourthly as to the suggestion that Clause 19 is predicated on the operation of the Scheme pro tem (see paragraph 91 above) in accordance with a written announcement, the same might be said in relation to any retrospective amendment power. Suppose, for instance, that the power in the present case had been an unrestricted one with no mention of announcements being made. Suppose that SPTL and Safeway had announced that a change to NPA from 1 December 1991 was intended and would be made in due course. The arguments which Mr Green has raised about the power “obviously” being concerned with announcements which have been acted upon apply with equal force, it seems to me, in this hypothetical situation. Given that there has been an announcement, it is equally obvious (to the extent that it is obvious at all), in each case that the draftsman must have had in mind that the announcement would be acted on. Why, I ask rhetorically, can it not be said in this hypothetical example that where an announcement is made the amendment power is in the nature of a compound amendment power with the trustee being authorised pro tem to operate the Scheme as though the amendment had been made? I do not consider that it can seriously be maintained that the mere presence of a retrospective power of amendment justifies such an approach, and yet it would be entirely unsurprising to find a scheme being operated in just that way in these circumstances. Trustees would not be unduly concerned about acting contrary to the trusts as they stand because they know that matters can, and almost certainly will, be put right retrospectively. 128. Fifthly, the small print which I have referred to (see paragraphs 19 and 112 above) cannot simply be ignored. It is, I consider, to be taken at face value and strongly supports the conclusion that the announcement does not impact directly on the benefits to be provided by the Scheme (in contrast with the terms of employment). 129. The question then is whether it follows from my conclusions so far that the 1991 Notices are not, and cannot be, “measures” sufficient to comply with the EU requirement concerning equal treatment. There is no doubt that the 1991 Notices were, at the very least, the commencement of a process which was intended to result, and as a matter of purely domestic law would have been effective to result, in a common NPA of age 65 with effect from 1 December 1991. In my judgment, however, the 1991 Notices taken by themselves are not measures which are sufficient to comply with the EU requirements. Reliance needs to be placed on the possibility of the future exercise of Clause 19 in order to be able even to argue that the 1991 Notices constitute measures. Since, as a matter of domestic law, I have concluded that a woman’s claim to benefits based on an NPA of age 60 can be rejected only once an amendment has been made, it follows that without the 1996 Deed, there are no measures by which equality has been effected. Whether the decisions in Avdel and Harland & Wolff preclude an amendment being made which gives effect to the 1991 Notices is a separate question to which I turn in the next section of this judgment. Conclusion on Clause 19 130. The 1991 Notices do not, by themselves, amount to an amendment within Clause 19. The impact of Clause 19 is not such that the 1991 Notices constitute measures sufficient to give effect to the equal treatment requirements of EU law. Application of EU principles to the 1991 Notices and the 1996 Deed Sections 62 to 65 Pensions Act 1995 131. Logically, the next issue to address is the impact of sections 62 to 65 PA 95. In order to understand what the impact of section 62 actually was, an understanding of the position immediately before that date is required. The position, in that regard, is, as I see it, precisely the same as it would have been immediately before the 1996 Deed if section 62 had not come into force by the date of that Deed. Mr Green has made submissions about the validity of the 1996 Deed which do not depend on section 62. I therefore propose to deal with the position immediately before the date of the 1996 Deed before considering the impact of section 62. 132. Mr Green’s submissions, ignoring section 62, are to the following effect: i) He accepts that the Barber window opened on 17 May 1990. ii) The EU cases, in particular Avdel, require men and women to be treated in the same way. iii) The relevant frame of reference is the Scheme itself and all of the provisions of the trust deed and rules. Thus (taking my example in Harland & Wolff) a power of forfeiture under a pension scheme applies as much to a member’s directly enforceable rights under article 119 as it does to the rights already provided by the pension scheme itself. iv) The power of amendment is part of the relevant frame of reference. It applies equally to men and women. v) It would be open to Safeway and SPTL to alter early retirement factors or to introduce a requirement for consent to early retirement (and the attractive early retirement factors then available). There is no reason why in relation to one particular feature, NPA, it should be outside the scope of the amendment power to effect a change. vi) Accordingly, once benefits for men and women have been equalised, there is nothing to preclude an amendment to the equalised benefits under which both are reduced in the same way. vii) As a matter of domestic law, the Collard principle enables a single step where the same result could be achieved in two steps. It would have been open to Safeway and SPTL immediately before 1 January 1996 or 2 May 1996 to have amended the Scheme by levelling-up benefits to a common NPA of age 60 and then, on 1 January 1996 or 2 May 1996 to reduce those equal benefits to a common NPA of age 65. 133. Mr Green submits that the result is a principled application of the EU law requirements. The essential point is that the frame of reference includes the power of amendment. All that Coloroll, Avdel and the other equalisation cases require is equal treatment for men and women. All benefits under the Scheme are subject to the amendment power and thus subject to retrospective reduction to the extent permitted by domestic law. That applies equally to directly enforceable rights under article 119 and to additional benefits introduced as a result of amendments introduced to give effect to those rights as it does to the rights already provided for in the Scheme. He relies on [36] of the judgment of the ECJ in Fisscher as to which see paragraphs 59 and 60 above. 134. Mr Green’s analysis of Harland & Wolff is that this point was not argued. The argument which was presented by Mr Paines was to the effect that the Barber window never opened in the first place because the relevant amendment in that case had retrospective effect, with the result that history was truly rewritten and all along the benefit is to be treated as having been compliant with article 119. In the light of the argument which he now presents, he submits that my decision should not be followed because my decision was an excessive application of Avdel: i) The result could not possibly have been required under EU law ii) My decision was internally inconsistent. iii) My decision conflicted with the principle of “minimum interference” with the operation of scheme rules, affirmed by the Court of Appeal in Foster Wheeler Ltd v Hanley [2010] ICR 374 (“Foster Wheeler”) 135. I do not accept Mr Green’s submission that the argument which he now raises did not feature in Mr Paines’ argument in Harland & Wolff. It is certainly the case that the principal focus of the argument and of my judgment was on the validity of the single step of increasing normal pension age with retrospective effect. But I did also address the argument based on Collard at [46] to [49] of my judgment (as to which see paragraphs 78 to 81 above). It seems to me that the issue which I was addressing in those paragraphs is in substance the argument which Mr Green now raises. There is, however, the important factual distinction which I have already mentioned between the present case and Harland & Wolff in that nothing equivalent to the bold-faced words was found in the latter and it may be that the presence of those words means that a qualification must be placed on what I decided and would justify a departure from my decision. But if that is a distinction without a difference, then Harland & Wolff would appear to govern the present case and if Safeway is to succeed, I must decline to follow my own decision. 136. Mr Green refers to [18] of my judgment where I observed that it would be extraordinary if a forfeiture provision did not apply with full force to the improved benefit of the disadvantaged class. He submits that it is no less extraordinary that, as a result of article 119, not only did men, as the disadvantaged class, receive indefeasible benefits when express conferment (by amendment) of those same benefits would have been defeasible by an exercise of the power of amendment, but also women would have their hitherto defeasible benefits converted into indefeasible benefits as a result of the requirement of there to be equal treatment with men – the so-called ratchet effect. 137. He says that this is what I actually decided. In doing so I read between the lines of what was decided in Avdel and yet there was no hint, according to him, of the point having been subject to argument or consideration by the ECJ in that case. And so my conclusion involves “an exaggerated domestic application of the equality principle”

“33. ….. Accordingly, the court should where possible, give effect to Barber rights by adhering to the provisions of the relevant scheme where it is possible to do so in preference to some other approach. If some departure is required, it should in general, so far as practicable, represent the minimum interference with the scheme provisions. This approach is not limited to the situation where members have been led to believe that a provision will be used in a certain way or a stated aim of that provision has been only imperfectly achieved (as in [Bestrustees] itself). As the judge in this case recognised, it is a principle of more general application.”