(1) Where a scheme contains a rule -

(a) which relates to continuing membership of, or the accrual of rights under, the scheme during any period of qualifying family leave in the case of a member who is an employee and which treats the member in a manner other than that in which he would be treated under the scheme if he was not absent from work, and was in receipt of remuneration from his employer, during that period, or

(b) which requires the amount of any benefit payable under the scheme to or in respect of any such member, to the extent that it falls to be determined by reference to his earnings in respect of a period which includes a period of qualifying family leave, to be determined other than it would be so determined if he was not absent from work and was in receipt of remuneration from his employer during that period,

it shall be regarded to that extent as not complying with the principle of equal pension treatment.