Equal treatment in social security
Social security refers to the public or state system of welfare and protection against social risks. In the workplace context, employers may administer measures to afford financial protection for employees after events such as invalidity, death (for family members), unemployment, industrial accidents and occupational diseases.
Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for women and men in matters of social security (OJ 1979, L6/24) applies to ‘the working population’ broadly conceived (Article 2). It covers statutory schemes which afford protection against sickness, invalidity, old age, accidents at work and occupational diseases, and unemployment; and social assistance that supplements or replaces the above schemes (Article 3(1)). The directive applies only to employment-related benefits, rather than general social assistance, reflecting a gender bias of social security structures organised around predominantly male patterns of employment.
Occupational schemes are usually supplementary to, but can sometimes replace, state social security protection. Council Directive 86/378/EC of 24 July 1986 implements the principle of equal treatment for women and men in such schemes (Article 5 as amended by Corrigendum 1986 L283/27 and Directive 96/97/EC).
Despite the apparent mandatory requirement for equal treatment, the Directive did allow Member States to defer compulsory application of the principle with respect to ‘the determination of pensionable age for the granting of old age or retirement pensions, and the possible implications for other benefits either until the date on which such equality is achieved in statutory schemes or, at the latest, until such equality is required by a Directive’ (Article 9).
However, the European Court of Justice declared that occupational schemes constituted ‘pay’ within the meaning of Article 141 EC (now 157 TFEU) and that equality was mandatory without any qualification (Barber v. Guardian Royal Exchange, Case C-262/88, , decided 17 May 1990). This replaced the actuarial principles that had dictated different pension payments for women and men in many occupational pension schemes. Due to the potential financial consequences, the ECJ held that its decision was not to have retrospective effect, so as to allow for claims subsequent to the decision on 17 May 1990, and this was confirmed by a Protocol attached to the Treaty of Maastricht (Protocol No. 2, the ‘Barber’ Protocol) signed in February 1992.
The effect of Barber is to limit the entitlement to benefits by women denied equal treatment in the past, but not the right to join or belong to an occupational pension scheme. However, the Court appears to have compromised the policy behind the principle of equal treatment for women and men by accepting that an employer can raise the pensionable age of women up to that of men (Smith v. Avdel Systems, Case C-408/92 ).