Justifying age discrimination
In the joined appeals of Lord Chancellor and another v McCloud and another and Secretary of State for the Home Department and others v Sargeant and… Read more
In the joined appeals of Lord Chancellor and another v McCloud and another and Secretary of State for the Home Department and others v Sargeant and others [2018] EWCA Civ 2844, the Court of Appeal ruled in favour of firefighters and judges who had been affected by public sector pension reforms. The court held that the age-based transitional protections put in place by the government to guard older judges and firefighters against the impact of significant reductions in pensions entitlements were discriminatory against their younger colleagues.
The transitional provisions in both schemes allowed older members to remain in the predecessor schemes, either until retirement (if they were within 10 years of normal pension age on 1 April 2012), or until the end of a period of tapered protection (if they were 10 to 14 years from normal pension age).The government accepted that these provisions treated younger scheme members less favourably because of their age but asserted that the aim to protect older workers who were closer to retirement was a legitimate one that justified the age-related treatment.
The Court of Appeal held that the government had failed to provide evidence to support its justification and that the desire to protect the older employees was irrational as they were least impacted by the transitional provisions. As such, the provisions could not be objectively justified and were found to be discriminatory.
Comment: This case demonstrates that employers who intend to operate what amount to age discriminatory policies or practices must give considerable thought to the justification for doing so. They must be prepared to set out a rational aim that justifies such treatment and evidence the legitimacy of such an aim.
Whilst the Court of Appeal did not grant permission to the government to appeal the decision, we are yet to hear whether or not the government intends to apply directly to the Supreme Court for permission to appeal.
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Justin Terry is an employment managing associate
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