Public & Commercial Services Union, R (on the application of) v Minister for the Civil Service

Protection for accrued pension, allowance and gratuity rights under section 2(3) of the 1972 Act is not confined to compulsory severance. It extends to benefits payable on voluntary severance where the amount is directly or indirectly referable to accrued service or contributions. The protection also covers enhanced benefits arising from an additional reckonable-service period and qualifying lump-sum payments. Amendments may be severed where they are both textually and substantially independent of unlawful provisions. A court will not ordinarily decide an academic issue, such as legitimate expectation, absent a sufficient reason.

This was a further judgment following the court’s main judgment, [2010] EWHC 1027 (Admin), concerning amendments to the Civil Service Compensation Scheme. The parties returned to court to resolve the scope of the quashing order and the effect of section 2(3) of the 1972 Act.

The disputed issues were whether protection extended to voluntary severance benefits, enhanced benefits linked to an additional period of reckonable service, and lump-sum payments; whether unaffected age-discrimination amendments could be severed and preserved; and whether the court should address a legitimate-expectation argument left open in the main judgment.

1. Protection under section 2(3). Relevant benefits payable on voluntary severance were protected in the same way as benefits payable on compulsory severance. Section 2(3) focuses on the connection between accrued rights and the amount of the pension, allowance or gratuity. It does not depend on the mechanism by which the benefit becomes payable. The amended provisions would reduce benefits referable to accrued rights and therefore could not be introduced without the agreement required by section 1(3) of the 1972 Act.
2. The protection extended to pension enhancements based on the additional period of reckonable service. The right arose by virtue of five years’ service, and the resulting pension was directly or indirectly referable to that right. The fact that the enhancement did not always vary in direct proportion to continuing service did not remove the protection. The lump-sum benefit under section 2.3 of the Civil Service Compensation Scheme was likewise protected.
3. Severability. Applying the principles stated by Lord Bridge in DPP v Hutchinson [1990] 2 AC 783 at 804B–G, the age-discrimination amendments satisfied both textual and substantial severability. They were contained in Schedules 3 and 4, operated on different dates, had a distinct purpose, and could operate independently of the unlawful severance amendments. They were therefore severed and not quashed.
4. The court declined to determine the legitimate-expectation argument. It was academic, and no sufficient reason existed to depart from the usual practice of not deciding purely academic questions.

The judgment was supplemental to the court’s main judgment, [2010] EWHC 1027 (Admin). No appeal decision is stated.