The Lord Chancellor & Anor v McCloud & Ors [2018] EWCA Civ 2844

Appeals against an EAT decision that judges and firefighters had been treated less favourably in relation to their pension schemes. Appeals dismissed.

The first of these appeals (see the case here was by the Lord Chancellor and the Ministry of Justice, from the decision of the EAT, affirming the decision of the ET, in which the appellants were found to have treated the respondent younger judges less favourably than older judges on the grounds of age by reason of the transitional provisions contained in the Judicial Pension Regulations 2015 and that the appellants had failed to show that such treatment was a proportionate means of achieving a legitimate aim. The second appeal (see the case here, which was heard on the same occasion as the first appeal, concerned decisions in relation to the transitional provisions of the new Firefighters Pension Scheme and the equivalent Welsh scheme. They raised common or similar issues. Whilst the primary issue in both appeals was whether the respondents to the original claims had unlawfully discriminated on grounds of age, there were also claims that by implementing the transitional provisions, they had in addition breached the principles of equal pay and indirect race discrimination.

The Court of Appeal dismissed the appeals. They found that in both the judges' and firefighters' cases the manner in which the transitional provisions had been implemented had given rise to unlawful direct age discrimination. In neither case could the admitted direct age discrimination be justified. In the Judges' case there was no error in the reasoning of the ET either in their assessment of aims or means. In the firefighters' case the Court of AppealĀ made the determination itself that there were no legitimate aims and did not remit the case, save for the determination of remedy. So far as the equal pay and indirect race discrimination claims were concerned, these claims were made out in the Judges' case. The only difference in the firefighters' case was that, had it been necessary, the Court of Appeal would have remitted the question whether the disadvantage was sufficiently substantial in the circumstances to establish a prima facie case of indirect discrimination, both in the equal pay and the race claims.

Read the full text of the judgment on Bailii

Published: 23/01/2019 09:56

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