Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
This case involved challenges to transitional provisions established as part of the changes to public sector pensions after the Hutton Report of 2011. The cases related not only to the Firefighters’ Pension Scheme but also other public bodies, such as the Judicial Pensions Scheme. The arguments raised by the claimants centred upon the fact that older workers received ‘tapered protection’ yet the younger workers were automatically transferred to the new pension schemes.
This had originally been before the EAT in 2018 (Case Review on that decision here.)
At that point the EAT upheld that the transitional provisions pursued legitimate aims in protecting those closest to the standard pension age. However, there was a finding that the ET had erred on the question of proportionality and it was remitted. Before that it was challenged in the Court of Appeal with it being found that there was age discrimination in relation to the transitional provisions.
The authorities made an argument that they were protected by Schedule 22, para. 1(1) of the Equality Act 2010 in GB, which gives public authorities a defence to discrimination when the action is pursuant to a legislative enactment. The claimants argued that Section 61 of the 2010 Act providing a non-discrimination rule for occupational pensions had greater effect and overrode the Schedule 22 defence.
The EAT held that any pension scheme was to be taken to include the non-discrimination rule within Section 61 and Section 61(3) means that the non-discrimination rule has the power to override discriminatory provisions of the scheme. In Northern Ireland these rules relating to non-discrimination for pensions is outlined albeit in a slightly different format in Regulation 12 of The Employment Equality (Age) Regulations (NI) 2006).
The EAT also noted that Directive 2000/78 which allows for schemes to be altered when it comes to non-discriminatory action. Notwithstanding Section 61 and its effect, this could have been used directly considering that the respondents were emanations of the state. Accordingly, the appeal from the respondents was dismissed and the finding that the occupational pension schemes were discriminatory on the basis of age was upheld.
Practical Lessons
This case examines the particular nuances of age discrimination when it comes to pension schemes. This has been a long running legal battle in ways but the EAT has affirmed that the mechanics of EU Law as well as equality legislation means that the principle of non-discrimination is given precedence over any defence that was supposed to be bestowed upon public authorities. Indeed, the fact that they were public authorities strengthened the non-discrimination aspect considering the fact that the EU directive could be applied directly.
https://assets.publishing.service.gov.uk/media/60265dafd3bf7f03208c2b26/London_Fire_Commissioner___Others_v_Ms_R_Sargeant___Others_UKEAT_0137_17_LA.pdf
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