From the blog: What do judges and firefighters have in common? No, this is not the start of a joke.
The Employment Tribunal ruled last month that transitional provisions made on the change in pension arrangements for judges amounted to unlawful age discrimination.
The government had failed to heed advice that selecting a particular age group for preferential treatment would constitute direct age discrimination.
The Employment Tribunal ruled last month that transitional provisions made on the change in pension arrangements for judges (from an unregistered, final salary scheme to a registered, career average salary scheme) amounted to unlawful age discrimination.
Is this something that, as a society, we simply have to accept as the 'new norm', or is there a way to achieve broader intergenerational fairness?
Under the provisions, the government protected the future service pension rights of those closest to retirement.
However, it had failed to heed advice that selecting a particular age group for preferential treatment would constitute direct age discrimination.
To be lawful, it would have to be something done pursuant to a legitimate aim, with the arrangements made being both appropriate and reasonably necessary to that end. The government was unable to demonstrate that.
Indeed, the available evidence was that the group selected for protection would be the least affected by the change in pension arrangements – so the least in need of protection.
The theme of fairness between the generations was also picked up on by the National Officer of the Fire Brigades Union, Sean Starbuck.
In a statement published on the FBU's website on January 10, Starbuck said: "Older firefighters were allowed to remain in their current scheme while the message to younger firefighters seems to be, 'Change your lifestyle, save a lot more and get on with being a member of a worse scheme'."
DB closures pose a dilemma
This is not just a concern for those in the public sector. Many employers in the private sector have closed their defined benefit schemes, replacing them with defined contribution schemes usually projected to provide lower benefits.
There is nothing automatically unlawful in that, and the companies usually have good reasons for doing so.
However, it leaves us with a dilemma. The generation retiring now and in the coming years will be the last of those with DB pensions, with the younger generations facing the prospect of working longer for less.
Is this something that, as a society, we simply have to accept as the 'new norm', or is there a way to achieve broader intergenerational fairness?
This will not be solved overnight, but as the judges and firefighters have shown, it is not something that can be ignored either.
Mark Smith is a partner at law firm Taylor Wessing
