The McCloud judgement refers to the Court of Appeal’s ruling that Government’s 2015 public sector pension reforms unlawfully treated existing public sectors differently based upon members’ age on the 1 April 2012.
The judgement came after two Employment Tribunals concerning the pensions of Judges’ (McCloud) and Firefighters’ (Sargeant) respectively.
In order for age discrimination to be lawful, it must be a proportionate way of achieving a legitimate aim. The Court of Appeal ruled that in these two cases the Government failed to demonstrate that the transitional protection arrangements were based upon a legitimate aim.
The key content of the judgment said: “We have found that in both the judges’ and firefighters’ cases the manner in which the transitional provisions have been implemented has given rise to unlawful direct age discrimination.
“In neither case could the admitted direct age discrimination be justified. In the Judges’ case, we see no error in the reasoning of Judge Williams either in his assessment of aims or means.
“In the firefighters’ case, we take the view that there were no legitimate aims and since we are satisfied that the contrary conclusion would not be open to an employment tribunal, we have made that determination ourselves and not remitted the case, save for the determination of remedy.”
In the firefighters’ case, the Court of Appeal importantly noted that: “the Government’s rationale for the protective provisions did need to be supported by evidence”.
The original ruling was made by the Court of Appeal in December 2018. However this was appealed by the Government. The Government’s appeal was rejected in July 2019 and the cases were remitted to Employment Tribunal remedy hearings.
It is important to note that it is the protection arrangements based upon members’ number of years to normal pension age that were found to be unlawful. Introducing new schemes for existing staff has not been found to be unlawful.
You can read more about how these cases have developed up to now in our McCloud Public Services Sector Pensions Briefing.
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