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Age Discrimination

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Is the protection of older workers a legitimate aim which justifies discrimination against younger workers?

Not without real evidence, held the Court of Appeal in The Lord Chancellor v McCloud.

There were two sets of Claimants, one of judges and another of firefighters, who were affected by recent government pension reforms. In both cases, the government allowed those members of the old pension scheme who were closest to retirement to remain members of that scheme, while the younger members were transferred to a new, less generous, scheme.

The Court of Appeal held that a mere "visceral instinct" that "it felt right" to protect older workers was not enough to amount to a legitimate aim which could justify discrimination. In principle, discrimination against younger workers can be justified if there are financial difficulties for older workers as a result of having less time to prepare for the impact of the changes, but such a justification would have to be demonstrated by evidence. Although it is legitimate for the government to have moral and political aims in mind, it is not the case that such aims do not have to be supported by evidence.

Thanks to James Medhurst of Fieldfisher for preparing this case summary.