The Lord Chancellor & Secretary of State for Justice v McCLoud & Ors and Mostyn & Ors UKEAT/0071/17/LA

Appeal against a finding that the Appellants were found to have treated the Respondents less favourably 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 meeting a legitimate aim. Appeal dismissed.

Following changes in the way Judicial pensions were calculated, younger judges were to receive lower pensions than older ones. The Claimants claimed that they were treated less favourably than those falling within the protected and/or taper groups on the grounds of age and that the less favourable treatment was not justified pursuant to section 13(2) of the Equality Act 2010. Thereby they were directly discriminated against on grounds of age. In addition, the Claimants made a claim, in so far as they are female, for equal pay on the basis that the transitional provisions disproportionately adversely affected women and the relevant term was not objectively justified. To the extent that the Equal Pay Act claims brought by the female Judges succeeded, then each male Claimant made a "piggy-back" claim to the like effect relying on the success of the female Claimants. The Claimants also brought claims of sex and race discrimination on the basis that the transitional provisions put women and BME Claimants at a disadvantage for the purposes of section 19 of the Equality Act 2010 and those provisions were not objectively justified for the purposes of section 19(2)(d) of the 2010 Act. The ET ruled that the Appellants had treated the Claimants less favourably than their comparators because of age and had failed to show their treatment of the Claimants to be a proportionate means of achieving a legitimate aim. The Appellants appealed.

The EAT dismissed the appeal. Although the ET had misunderstood and/or misapplied the facts and erred in law in concluding that the Appellants had not established a legitimate aim, the decision of the ET on justification was not wrong in law.

Published: 30/01/2018 18:20

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