Part-timer’s access to pension schemes backdated to 1976

In two separate judgements, the ECJ has ruled that employers who exclude part-time workers from pension schemes risk claims of indirect sex discrimination if the class of workers is predominantly female. This point had already been made in past cases. The issue here was how far back EU law could be applied to grant part-time workers access to pension schemes if they were found to be illegally excluded.

The cases were brought by five long term part-time female workers against Deutsche Post and Deutsche Telekom after they were denied the right to participate in retirement programmes because until 1988 the number of hours worked did not meet the national rules for pension participation.

The Court said claims could only be backdated to 1976, a cut off date set in an earlier EU court ruling on pension rights. Deutsche Post and Telekom sought to apply the Defrenne ruling's bar on retroactive claims to deny retroactive pension rights to these workers. But the Court said that since Germany had it own rules to protect employees from sex discrimination prior to 1976, the female claimants could rely on German law, and the court did not have to apply the Defrenne deadline. That decision was taken to prevent a deluge of claims in states where no prior rights existed, but it was not taken to limit rights that workers in some member states already held, the Court noted.

This ruling could have serious financial consequences for the companies concerned (Deutsche Telekom AG, Deutsche Post and its Postbank unit) as it opens the way for part time workers in Germany's public sector to seek backdated pension rights to 1976. It will also have wider implications for other privatised or soon-to-be-privatised public entities. (Deutsche Telekom AG/Lilli Schröder, Cases C- 50/96 and C-234-5/96, judgment of 10/2/00)