Government loses indirect discrimination appeal

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Article

27 December, 2018

A claim was brought by around 230 judges challenging the government's decision forcing younger judges to leave the judicial pension scheme. Members closest to retirement age were permitted to remain on the scheme, whilst younger judges were transferred to a less generous scheme. The judges claimed this was discriminatory on the ground of age. Additionally, due to governmental schemes to increase diversity in the judiciary, many of the younger judges were female, and/or from an ethnic minority. As a result, claims were also brought for indirect race discrimination and a breach of the principle of equal pay.

The Employment Tribunal held that the Ministry of Justice and the Lord Chancellor had discriminated against the younger judges without justification. An appeal was subsequently dismissed by the Employment Appeal Tribunal, and an appeal to the Court of Appeal was made.

The Court of Appeal also rejected the appeal, confirming the findings of the ET and EAT. It agreed that the requirement for younger judges to transfer to the less beneficial pension scheme was unlawfully discriminatory. The government's claim that it "felt right" to protect older workers was inadequate and not sufficient to amount to a legitimate aim to justify discrimination. Discrimination can be justified against younger workers if there are financial difficulties for older workers as a result of having less time to prepare for the impact of change. However, evidence would need to be provided and that was not the case in this instance.

The rejection of the appeal may have far-reaching implications within the public sector as many public sector workers have been transferred to less preferable pension schemes over recent years; such as police officers, teachers, and NHS workers. It is possible that other public sector workers have been subjected to indirect discrimination as a result and the full impact of this judgment remains to be seen.

If you are looking for more information in relation indirect discrimination or public sector pensions, please contact our Employment and HR team by telephone on 0333 207 1135. Alternatively, send your enquiry to us through our online contact form.

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