62.—(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 paragraph (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 sub-paragraph (a) or (b) applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision) or equal value to that of a man in the same employment,
but (apart from the rule) any of the terms referred to in paragraph (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.
(4) An equal treatment rule does not operate in relation to any difference as between a woman and a man in the operation of any of the terms referred to in paragraph (2) if the trustees or managers of the scheme prove that the difference is genuinely due to a material factor which—
(a)is not the difference of sex, but
(b)is a material difference between the woman's case and the man's case.
(5) References in paragraph (4) and Articles 63 to 65 to the terms referred to in paragraph (2), or the effect of any of those terms, include—
(a)a term which confers on the trustees or managers of an occupational pension scheme, or any other person, a discretion which, in a case within any of sub-paragraphs (a) to (c) of paragraph (3)—
(i)may be exercised so as to affect the way in which persons become members of the scheme, or members of the scheme are treated, and
(ii)may (apart from the equal treatment rule) be so exercised in a way less favourable to the woman than to the man, and
(b)the effect of any exercise of such a discretion;
and references to the terms on which members of the scheme are treated are to be read accordingly.
(6) In the case of a term within paragraph (5)(a) the effect of an equal treatment rule is that the term shall be treated as so modified as not to permit the discretion to be exercised in a way less favourable to the woman than to the man.
[F1(7) Where a person (“A”) is or has been in pensionable service under an occupational pension scheme, an equal treatment rule has the effects set out in paragraphs (8) and (9).
(8) If, by virtue of the application of the guaranteed minimum pension provisions, any of the terms referred to in paragraph (2) is less favourable to A than it would be if A were of the opposite sex, the term is modified so as not to be less favourable.
(9) If—
(a)any of the terms referred to in paragraph (2) confers on the trustees or managers of an occupational pension scheme, or any other person, a discretion which, in a case within paragraph (7), may be exercised so as to affect the way in which persons become members of the scheme, or the way in which members of the scheme are treated, and
(b)by virtue of the application of the guaranteed minimum pension provisions, the discretion is capable of being exercised in a way that would be less favourable to A than it would be if A were of the opposite sex,
the term is modified so as to prevent the exercise of the discretion in that way.
(10) In paragraphs (8) and (9), “guaranteed minimum pension provisions” means so much of the Pension Schemes Act and of any other enactment as relates to guaranteed minimum pensions (within the meaning of that Act).
(11) In Articles 63 to 65, references to the terms referred to in paragraph (2) include a term within paragraph (9)(a) and references to the effect of those terms include the effect of any exercise of a discretion conferred by any such term; and references to the terms on which members of an occupational pension scheme are treated are to be read accordingly.]
F1Art. 62(7)-(11) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Occupational Pension Schemes (Amendment) (Equal Treatment) (Northern Ireland) Regulations 2023 (S.I. 2023/1310), reg. 3(2)