Hogan Lovells

Key Dates

Judgment given 13 July 2020.

Safeway Limited v Newton and others [2020] EWCA Civ 869.


The scheme had the traditional normal retirement ages (NRAs) of 60 for women and 65 for men.

Following the Barber judgment on 17 May 1990, the employer made an announcement to members on 1 December 1991 that from that date both men and women would accrue benefits on the basis of NRA65.

Section 62 (equal treatment rule) of the Pensions Act 1995 came into force on 1 January 1996 and provided that:

The employer and trustees executed a deed of amendment on 2 May 1996 which purported retrospectively to equalise NRA at 65 for men and women with effect from 1 January 1991, the date of the earlier announcement.  The scheme rules allowed retrospective amendments and section 67 of the Pensions Act 1995 had not yet come into force, meaning that the amendment was permitted under UK law.

In a judgment dated 29 February 2016, the High Court (Warren J) held that the rules could not be amended other than by deed.  The 1991 announcement had therefore not had the effect of equalising NRAs at 65.

The Court of Appeal on 5 October 2017 agreed that amendments to the rules could only be made by deed but referred the case to the Court of Justice of the European Union (CJEU), asking whether EU law prohibited retrospective levelling down in a case where this would have been permitted under domestic UK law. In a judgment dated 7 October 2019, the CJEU ruled that retrospective levelling down was prohibited, unless it could be objectively justified.

Effect of section 62 Pensions Act 1995

The case was sent back to the Court of Appeal to consider the effect of section 62.  The CJEU had distinguished three periods:

The Court of Appeal held that closure of the Barber window (and the start of Period 3) was defined by the point at which domestic law had provided legally enforceable and certain rights.  Section 62 had achieved this, meaning that Period 3 started on 1 January 1996.  The Court rejected Mr Newton's argument that the Barber window was not closed until a scheme specific equalisation measure was adopted.  However, even if a scheme specific measure had been required by EU law, section 62 deems a scheme to be amended by the inclusion of an equal treatment rule, and so any requirement for scheme rules to have been amended would have been met.

The effect of the retrospective amendments made by the May 1996 deed, combined with section 62 Pensions Act 1995, was that NRA had equalised at 65 from 1 January 1996 (the date section 62 came into force).

Date Accessed: 28/05/2022