In this case, the British Gurkha Welfare Society (“BGWS”) sought to challenge the pension arrangements put in place for Gurkhas following a government review in December 2006. Serving Gurkhas are eligible to take part in the Gurkha Pension Scheme (“GPS”).
This case was brought by reference to the European Convention on Human Rights rather than the Employment Equality (Age) Regulations 2006.
The GPS was created in 1947 and was linked to the value of the British Indian Armed Forces pension. It increased over time in line with the Indian Armed Forces Pension and so was at a much lower level compared to the UK pension. The reason for this was that Gurkhas worked and retired in the Far East, where the cost of living is much less. Although part of the British Army, historically the Gurkhas were a Far East based force with three regiments in Hong Kong.
However, the nature of the force changed when Hong Kong returned to China in 1997. Three regiments moved to the UK and so the Gurkhas became a predominantly UK based force. The increasing amount of time spent in this country meant that the expectations of where the Gurkhas would retire were no longer the same as Gurkhas developed contacts, roots and family connections in the UK.
After public pressure, the MoD sought to reform the GPS. Legislation was enacted so that any Gurkha who served on or after 1 July 1997 could enhance their pensions and transfer them to the Armed Forces Pension Scheme (”AFPS”). Transfer rights for time served on or after 1 July 1997 were on a full year for year basis, however time prior to 1 July 1997 was only calculated on an actuarial basis (equating to 23-36% of others in the Army).
The BGWS therefore challenged:
- the decision that Gurkhas who retired prior to 1 July 1997 were not entitled to transfer their pension rights under the GPS into the AFPS, thereby denying them the right to enhance their existing pensions; and,
- the decision for those Gurkhas who retired after 1 July 1997 who can transfer their pension rights into the AFPS, but for whom service before that date does not rank on a year for year basis and instead on an actuarial basis.
The BGWS argued that the pension arrangements were irrational, that the MOD failed in their race equality duty, but also that the pension arrangements discriminate against Gurkhas on the basis of age and nationality.
They argued that the arrangements were discriminatory contrary to European Convention on Human Rights ("ECHR"). Specifically, the BGWS were arguing that the decision to impose the cut off date of 1 July 1997 was indirectly discriminatory because service worked before 1997 was not valued at the same level as service after 1997. This would affect predominantly older Gurkhas who would suffer the disadvantage of a lower pension.
This issue has been challenged before in the cases of Purja and Gurung. These cases decided that the pension arrangements were “justified and proportionate”. BGWS sought to overrule these cases, but the court reassessed the facts and still came to the same conclusions for the same reasons, focusing on the rationality of selecting 1 July 1997 as the cut off point. The court stated that “when lines are drawn for any purpose by reference to dates the result may well include some indirect age discrimination.”
BGWS were also attempting to argue that age as a ground for discrimination should be treated as a “suspect ground” and require particularly strong justification. This argument also failed. The court noted the ECJ in the Heyday case which made clear the wide margin accorded to member states in age discrimination.
British Gurkha Welfare Society & others v Ministry of Defence (2010) EWHC 3 (Admin)
This case was subsequently appealed to the Court of Appeal - read more.