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Equal pay and pensions: Extent of the Barber temporal restriction

In Howard v Ministry of Defence, the EAT clarifies the retrospective application of the European Court of Justice's ruling in Barber v Guardian Royal Exchange Assurance Group Ltd [1990] IRLR 240 on sex equality in occupational pension schemes. In Barber, the ECJ held that a claim could only be brought under Article 119 of the EC Treaty in respect of periods of employment after 17 May 1990 unless before that date the applicant had "initiated legal proceedings or raised an equivalent claim under the applicable national law". In Howard the EAT rules that the expression "equivalent claim in national law" does not extend to a person who merely asserted a claim. There must be something which is equivalent to legal proceedings, such as where proceedings are commenced in an administrative tribunal or by way of arbitration. The EAT also confirms that the direct effect of Article 119 cannot be relied upon in respect of periods of employment prior to 8 April 1976, the date of the ECJ's decision in Defrenne v SABENA [1976] ECR 455. And, in any event, Article 119 cannot be relied upon in respect of service prior to 1 January 1973, the date when the United Kingdom acceded to the EC Treaty.