The Lord Chancellor & Anor v McCloud & Ors

For direct age discrimination, the asserted objective must be a legitimate public-interest social policy aim. An employment tribunal must identify the aim actually pursued and assess it in the particular circumstances. Moral and political judgments may support an aim without hard evidential proof.

The means chosen must nevertheless be appropriate and reasonably necessary. The tribunal must carefully balance the gravity of the discriminatory effect against the importance of the aim, and determine whether less discriminatory measures would achieve it. In applying that test under section 13(2) of the Equality Act 2010, the tribunal makes its own assessment of proportionality.

The Lord Chancellor and the Ministry of Justice appealed against an Employment Tribunal decision entered in January 2017. The Tribunal held that transitional protection in Schedule 2 to the Judicial Pensions Regulations 2015 directly discriminated on grounds of age and was not justified.

The reforms closed the existing judicial pension scheme to most future service and introduced the New Judicial Pension Scheme. Judges closest to normal pension age retained full or tapering protection, while younger judges moved to the new scheme. The appellants accepted the age-based difference in treatment, but relied on protection for those close to retirement and consistency across public-service pension reforms.

The central issues were whether those were legitimate aims and whether the transitional provisions were proportionate means of pursuing them.

1. Appeal dismissed. The Employment Judge erred in concluding that the appellants had failed to establish a legitimate aim. The Judge considered the stated objective too narrowly and failed to take proper account of the complex moral and political judgments evidenced by the contemporaneous material. Such judgments may not be susceptible to hard evidential proof.

2. That error did not affect the result. The Employment Judge assessed proportionality on the assumption that a legitimate aim existed. That assessment followed the approach required by Seldon and Lockwood. An employment tribunal must scrutinise whether the measure is appropriate and reasonably necessary in the particular employment context, including whether its discriminatory effects are outweighed by the importance of the aim.

3. The Judge was entitled to find that the severe disadvantage imposed on unprotected judicial office-holders, including the distinct tax consequences of transfer to the new scheme, far outweighed the public benefit of applying a consistent transitional policy across public-service pension schemes. The transitional provisions were therefore not shown to be a proportionate means of achieving a legitimate aim under section 13(2) of the Equality Act 2010 and Article 6(1) of Council Directive 2000/78.

4. The Judge's separate consideration of non-discriminatory alternatives was unnecessary, but did not undermine the sustainable proportionality finding. The indirect discrimination and equal-pay claims followed the direct age-discrimination outcome. The material-factor point was not determined because it did not arise following dismissal of the appeal.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal's conclusion that the transitional provisions were unjustified was upheld, although its conclusion that no legitimate aim had been established was erroneous.
• Employment Tribunal: held that Schedule 2 to the Judicial Pensions Regulations 2015 treated the claimants less favourably because of age and was not a proportionate means of achieving a legitimate aim. No citation was stated.