London Fire and Emergency Planning Authority & Ors v Sargeant & Ors

In direct age-discrimination claims concerning public-service pension transition arrangements, a government may pursue legitimate social-policy aims, including protecting those closest to retirement, tapering protection and securing consistency. The tribunal must recognise the state's broad discretion when assessing those aims.

That discretion does not remove the tribunal's duty to decide for itself whether the discriminatory means are proportionate in the particular employment context. It must scrutinise the impact of the differential treatment and consider whether less discriminatory measures could achieve the aims.

For indirect discrimination, a causal connection between the PCP and the group and individual disadvantage is sufficient; absent a material difference under section 23, the respondent must establish objective justification.

Five firefighter lead claimants challenged age-based transitional protection under the Firefighters' Pension Scheme 2015. Older members remained in the earlier, more favourable scheme wholly or for a tapered period; younger members transferred immediately to the new scheme. The claimants also advanced equal-pay and indirect sex and race-discrimination claims.

The Employment Tribunal held that the transitional arrangements were justified, and dismissed all claims in decisions entered on 14 February 2017. It applied a wide margin of discretion to both legitimate aim and proportionality. A separate preliminary appeal concerning Schedule 22 to the Equality Act 2010 was not determined.

The central issues were the proper intensity of scrutiny of social-policy pension measures, the proportionality of the age-based protection, and whether the indirect discrimination claims required justification.

1. Appeal allowed in part. The Employment Tribunal was entitled to find that the respondents pursued legitimate aims: protecting those closest to retirement from pension reform, respecting their greater expectations, tapering protection to avoid a cliff edge, and ensuring public-sector consistency. Those were social-policy aims. In assessing their legitimacy, the Tribunal correctly recognised the Government's broad discretion.

2. The Tribunal nevertheless erred on proportionality. Seldon reconciles the state's margin of discretion with the domestic requirement for the tribunal to scrutinise the means in the particular employment context. It must decide whether the measures meet the objective and whether less discriminatory measures would do so. The Tribunal had confined itself to the CJEU margin-of-discretion approach and had not independently assessed the severe differential effect of denying protection to younger firefighters.

3. The proportionality issue was remitted for fresh or further determination by the same or a differently constituted tribunal, after submissions on the appropriate constitution. The EAT did not decide whether the arrangements were in fact proportionate.

4. The equal-pay appeal failed. The Tribunal's finding that the difference between Ms Sargeant and her male comparators was caused by age, not sex, engaged the material-factor defence in section 69(4) of the Equality Act 2010. Although its expression was unclear, its conclusion that the defence succeeded disclosed no error of law. The associated piggy-back claim also failed.

5. The appeals concerning indirect sex and race discrimination succeeded. Applying the Supreme Court decision in Essop and Naeem, the required causal link was between the PCP and the disadvantage suffered by the group and individual; it was unnecessary to prove why the PCP produced that disadvantage. There was no suggested material difference under section 23. The respondents therefore had to rely on objective justification under section 19(2)(d), which required remittal for fresh or further consideration.

• Employment Appeal Tribunal: Allowed the appeals in part, set aside the proportionality conclusion on direct age discrimination and the dismissal of the indirect sex and race claims, and directed remittal.
• Employment Tribunal: On 14 February 2017, dismissed the direct age-discrimination, equal-pay, indirect sex and race-discrimination, and associated piggy-back claims.
• Employment Tribunal: On 22 June 2016, held that paragraph 1(1) of Schedule 22 to the Equality Act 2010 did not bar the age-discrimination claims. The appeal from that preliminary decision was not heard pending these appeals.