Government to appeal ruling on discrimination

In recent months, the two fairly similar pension discrimination cases have resulted in very different outcomes.

As the government found with the judges’ case, anything that smacks of discrimination can be open to challenge

Stephen Scholefield, Pinsent Masons

At the beginning of this year, a group of judges won a legal case regarding race, sex and age discrimination surrounding changes made to the Judicial Pension Scheme in 2015. But the government has announced it plans to appeal the employment tribunal’s ruling.

Government to appeal

“We are disappointed by the court’s findings and have lodged an appeal against the judgment,” said a government spokesperson.

The judges had raised the legal challenge against the Ministry of Justice, saying younger judges had been discriminated against when new and less generous pension arrangements were introduced in 2015.

Claimants said that, in contrast, older judges were permitted to remain in the old, more generous, scheme until retirement, or until the end of a tapered protection period. There were also complaints that, in some cases, the judicial pension scheme changes resulted in race and sex discrimination.

Shah Qureshi, who heads up the employment and professional discipline team at Bindmans and is acting for the High Court judges, said: “Naturally we are disappointed with the government’s decision to appeal given its acceptance that the way in which the judicial pension provisions operate discriminates against younger judges and indirectly discriminates against women and ethnic minorities.”

Qureshi noted that “the judgment was clear in finding that such discrimination is not justified and is unlawful”.

He added: “We had hoped that the government would rather focus on addressing the inequality.”

FBU continues ‘fight for pensions justice’

A similar challenge had been raised by the Fire Brigades Union on behalf of 6,000 members relating to age, sex and race discrimination.

However, at the beginning of this year, the employment tribunal concluded that the transitional arrangements for the new 2015 Firefighters’ Pension Scheme did not discriminate on the grounds of age, sex or race.

The union told members that its “legal team has analysed the reasoning, and their preliminary view is that this judgment is not at all convincing”.

Following a meeting with its legal representatives in February, the union has decided to appeal. Matt Wrack, FBU general secretary, told members: “The union will not give up the fight for pensions justice.”

The case for consistency

Stephen Scholefield, partner at law firm Pinsent Masons, said that although looking to protect employees might seem like the right thing to do, it can prove to be – directly or indirectly – discriminatory on grounds of age, sex, or race.

He also pointed out that “whilst both cases will be decided on their merits, to the outsider they look very similar in terms of what the government is trying to achieve, which in part is consistency”.

Scholefield explained that the government has generally protected older workers when making changes to other, larger public service pension schemes “and a wider challenge could prove costly – ultimately to the taxpayer”.

He said: “Where an employer looks to protect one group of employees, it needs to have very good grounds for doing so... anything that smacks of discrimination can be open to challenge.”

Have your ducks in a row

Anna Copestake, senior associate at law firm Arc Pensions Law, said that for employers it is crucial to “have all your ducks in a row” in terms of evidencing that you have a legitimate aim.

“An aim to protect an age-determined group of workers who the employer believes are disadvantaged may well be an aim, but it may not always be a legitimate aim if prodded by a court,” said Copestake.

Employers need to think about precisely how, and in what ways, those workers are disadvantaged, and be prepared to dig out the evidence to back that up, she explained.

Alice Honeywill, partner at law firm Burges Salmon, highlighted that “these are big cases that both sides are prepared to keep going with”, adding: “I think we [can] expect that, whichever way the appeals go, they’re going to carry on through the court system.”

But, she noted, “it’s entirely possible to come to different conclusions” on a case despite the cases having similar backgrounds.