This case came on foot of the transitional arrangements that were brought into place in 2015 that affected the pension entitlement of Judges and Firefighters.  This did not change the pension entitlement of those within 10 years of retirement - yet those between 10-14 years to retirement received some protection and those greater than 14 years received no protection.  The EAT found that there was less favourable treatment for young Judges and that the treatment was not a proportionate means of achieving a legitimate aim.

In the case of the firefighters, the EAT held that there was a proportionate means of achieving a legitimate aim.  This was on foot of ensuring that those closest to retirement were protected from the financial effects of reform as well as a legitimate expectation that those closest to retirement would have vis-à-vis their pension entitlement.

The firefighters appealed the decision to the Court of Appeal where it was held that the Government should have a margin of appreciation regarding whether there is a legitimate aim (which should be examined objectively) but that it was only the beginning.  In the case of the firefighters, the Court of Appeal examined whether there was a legitimate aim in the change to the pension entitlement.  It was held that embarking upon an economic analysis was required to demonstrate how there was a pay differential.  It then fell to the Government to show that the discriminatory effect (based upon age and in some situations, race) had to be shown as part of social policy.   The Court of Appeal noted that the arguments put forward regarding those closest to retirement requiring greater protection was nothing more than a generalisation.  Accordingly, it was held that the younger firefighters were victims of unlawful age discrimination due to the pension reforms.

Practical Lessons:

This case has come to fore as a result of the Supreme Court’s ruling in June 2019 to refuse the Government’s application to appeal the decision of the Court of Appeal.

This refusal demonstrates a strong stance in favour of the decision of the Court of Appeal regarding pension reform.  It demonstrates that whilst the Government has an element of discretion regarding pension reform it must be done in a way that takes into account the effect it would have on different age groups.

This decision is likely to have an effect on any pension reform that Government would bring in that affects NI employees as well as being ‘food for thought’ for any pension reform that occurs within the Northern Ireland public sector either through restored devolution or any direct action from Westminster.
https://www.bailii.org/ew/cases/EWCA/Civ/2018/2844.html