Two cases have been judged in tandem by the Court of Appeal due to the similarity in issues regarding age discrimination and new pension schemes.
Facts
“McCloud” concerns the new pension scheme provisions for judges (“Judges’ case”), whilst “Sargeant” relates to the new pension scheme provisions for firefighters (“Firefighters’ case”). We report on both EAT decisions here and here, respectively.
The original claimants in both cases objected to the introduction of new pension schemes that were significantly less generous than their original schemes. To mitigate the effects of these changes, it was intended that judges and firefighters within a certain age bracket (i.e. closest to pension age) would retain the benefits of the original schemes, whilst another age bracket (i.e. those with four years of the first bracket) would be entitled to tapered protection under transitional provisions before transferring to the new pension schemes. However, a third category, those deemed furthest from the pension age, would immediately be transferred to the new pension scheme.
The claimant judges and firefighters alleged the new provisions were age discriminatory. In the Judges’ case, the Employment Tribunal and the Employment Appeal Tribunal (EAT) held that the treatment of the claimants was not a proportionate means of achieving a legitimate aim. In the Firefighters’ case, the tribunal judge held that the transitional protection measures were a proportionate means of achieving a legitimate aim and dismissed the age discrimination claims. The EAT agreed that there was a legitimate aim, but had remitted the case for re-hearing the issue of proportionality.
Decision
The Court of Appeal came to a similar decision in both cases.
Judges
In the Judges’ case, it was stated that there was no evidence that older judges needed more protection than younger judges.
The Court of Appeal agreed with the original finding of the tribunal judge that this aim was irrational. The Court of Appeal upheld the decision reached in both the Employment Tribunal and EAT. The successful age discrimination claims by the claimant judges were remitted to the Employment Tribunal for a remedy hearing.
Firefighters
In the Firefighters’ case, the Court of Appeal addressed the findings made by the tribunal judge and EAT, both of which stated that there was a legitimate aim in introducing the transitional protection provisions.
The Court of Appeal disagreed.
The Court of Appeal held that the tribunal judge had failed to carry out the objective assessment exercise as set out in Seldon with regards to the legitimacy of the aim. The Government had failed to show, that despite the apparent discriminatory effect of the transitional protection measures, that the measures were a legitimate aim of social policy. Their argument was only based on assertions and generalisations with no evidence provided. This was an error of law.
The Court of Appeal allowed the claimant firefighters’ appeal against the decision on the legitimacy of aims and remitted the case back to the Employment Tribunal to discuss remedies for the firefighters.