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Pension scheme transitional provisions were discriminatory

The Employment Appeal Tribunal has held that the age based transitional provisions in new judges’ pension scheme were discriminatory.

The Judicial Pensions Regulations 2015 contain age based transitional provisions, which protect older judges against the effect of substantial compulsory pension reforms.

The Employment Appeal Tribunal had to decide was whether these provisions were directly discriminatory against the younger judges and if they were whether they were objectively justified. It also had to decide whether they indirectly discriminated against female and BAME judges, who were more likely to be in the younger cohort.

The Employment Appeal Tribunal allowed an appeal against the tribunal's decision that protecting those within 10 years of retirement, and ensuring consistency of approach across all public sector pension reforms, were not legitimate social policy aims. The tribunal, it said, had failed to take into account the ‘complex of moral and political judgments’ concerned. However, this, it said, made no difference to the outcome as it went on to uphold the tribunal's conclusions that the ‘extremely severe’ discriminatory impact on the younger judges (which combined lower pension with increased tax burden) far outweighed the public benefit of applying the same policy consistently across the public sector. The transitional provisions were therefore, it said, not proportionate.

The Employment Appeal Tribunal also said that the tribunal had been right not to allow the government a ‘margin of discretion’ in terms of its social policy aims and the means of achieving them. It was, it said, for the tribunal to decide whether the measures were proportionate, applying an ‘enhanced level of scrutiny’.

Case reference: McCloud and others v Lord Chancellor and Secretary of State fir Justice and another



 
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