Interesting considerations on age discrimination in the judiciary

Age discrimination in the judiciary

The recent case of Lord Chancellor v McCloud highlighted the unique provisions of the Equality Act 2010 in relation to age discrimination.  Unlike the other protected characteristics in the Equality Act, e.g. sex, race, religion or belief, there will be no direct age discrimination where the employer can show that its treatment against the employee is a proportionate means of achieving a legitimate aim.  


The EAT has held in this case that age-based transitional provisions in the new judges’ pension scheme directly discriminate against younger members of the judiciary and are not objectively justified . Before 1 April 2015, the judges in this case were all members of the Judicial Pension Scheme. After this date they were all transferred into a replacement scheme, the New Judicial Pension Scheme which provided for less valuable pension benefits. The transitional provisions permitted older judges to either remain in the old pension scheme until retirement or until the end of a period of tapered protection.  It was acknowledged that this had a discriminatory effect.  


The EAT upheld the tribunal’s decision that the ‘extremely severe’ discriminatory impact on the younger judges far outweighed the public benefit of applying a consistent policy across the public sector.  The EAT had allowed the appeal against the tribunal’s decision that ensuring consistency of approach across all public sector reforms and protecting those who will retire within 10 years were not legitimate social policies. The EAT stated that this failed to take account of the ‘complex of moral and political judgments.’ Nevertheless the EAT felt that this did not affect the outcome of the case as the discriminatory impact including the lower pension were not proportionate. 


Brachers advises on all aspects of discrimination in the work place including providing advice on ensuring benefits provided do not adversely affect employees in certain age categories. For further advice, speak to Sarah Wimsett or a member of the Employment Team.