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Judicial Pensions: Justification of (admitted) Age Discriminatory Effects

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Are age-based transitional provisions in the new judges' pension scheme discriminatory against younger judges?

Yes, held the EAT in Lord Chancellor v McCloud, upholding the decision of the first instance tribunal.

Age-based transitional provisions in the Judicial Pensions Regulations 2015 shield older judges from substantial pension reforms. A group of 210 younger judges brought claims of direct age discrimination. They further claimed that the provisions contravene the equal pay principle and indirectly discriminate against female and BME judges who are more likely to be in the younger cohort.

The EAT found that the tribunal had misdirected itself on proportionality in finding the aims were not legitimate social policy aims but did itself not make a finding. This did not however impact the outcome. 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 Appellants had failed to show their treatment of the Claimants to be a proportionate means of achieving a legitimate aim. Appeal dismissed.

Thanks to Karen Jackson of didlaw for preparing this case summary.