Equality-based tribunal challenges to public sector pension cuts 


In 2011, the government accepted a range of recommendations to cut public sector pensions, made by the Independent Public Service Pensions Commission (the Hutton review) and enacted in the Public Services Pensions Act 2013. The most significant changes were:


• for existing pensions to change from a final-salary basis to a pension based on career-average pay; and


• to link pension ages to the state pension age (except for firefighters, police and the armed forces, where the pension age was raised to 60, “subject to regular review”). 


To cushion those closest to retirement against the effect of these changes, the government put in place transitional arrangements, designed to fully protect anyone within 10 years of retirement and partially protect those within 15 years. Younger workers must bear the full brunt of the changes. 


Two separate tribunal claims are being fought to challenge these transitional arrangements on the basis that they are age discriminatory. If successful, they will have implications across the public sector.


In Sargeant and Ors v London Fire and Emergency Planning Authority [2018] UKEAT/0016/17/LA, a group of firefighters whose pensions are not protected have challenged the transitional arrangements on behalf of 5,000 firefighters, supported by their union, the FBU. The new retirement age is a particular concern for firefighters, because of the physical demands of the role. There is evidence that many firefighters will struggle to maintain the necessary fitness levels until 60. 


So far in this case, the EAT has accepted that protecting those nearest retirement from the impacts of a government policy can be a legitimate aim, but has ruled that the tribunal failed to scrutinise carefully enough whether the government’s transitional arrangements are proportionate to that aim, especially given the demands of firefighting. The claim has been sent back to the tribunal to reconsider. 


In Lord Chancellor and Ministry of Justice v McCloud & Mostyn [2018] EAT/0071/17/LA, a group of judges has successfully challenged the application of the transitional arrangements to judges on the basis that they discriminate against younger judges and also, because of the changing demographic of the judiciary, against female and black and minority ethnic (BAME) judges, since judges from within these groups are more likely to have been recruited in the last 10 years. 


The government lost this case mainly because it prioritised “consistency” (in the form of political desire for uniform arrangements across the public sector) without considering the composition of each affected group of workers, in this case, judges. The age and longevity profile of the judiciary meant that 85% of judges escaped any cut to their pensions, whereas a far smaller group of younger judges, including female and BAME judges, were forced to accept less favourable pension terms despite government promises when they took on their roles that their pension arrangements would not change. This, said the EAT, was unlawful discrimination. It could not be justified.