Public Sector Pension Reform In Trouble?

jamesd

BobQ wrote: »

In this case people less than 10 years from retirement being told they are now an additional 6 years away

Nobody less than ten years from retirement was told that they were now an additional six years away. As the partial quote you gave from Hutton indicates, the expectation was that they would retire at their original NPA and see only "fairly limited change to the benefit which they would otherwise have expected to accrue", by and large.

Lest you be tempted to try comparing it to the delay in state pension age, read the dismissal of that claim that was tried in this case in paragraph 89.

Paragraphs 86 through 89 and 127 of the tribunal decision essentially dispose of your time to prepare arguments, so I refer you to those and let the judge do so in his decision.

Tromking

BobQ wrote: »

The implication is that those within 10 years of retirement got more favourable treatment than those who had longer. The transitional protection is just a way of removing the unfairness created by the arbitrary decision (ie its not fait that someone 10 years from retirement are treated differently to those who are 10 years + 1 day.) However, the difference for the Judges is that the transtional arrangements are much longer.

The judges decision seems to have been purely about age discrimination. I canno seewhy other forms of discrimination do not apply. The problem is that having made the decision to give favourable treatment to those closer to retirement, its fairly obvious that it is discriminatory based on age (most given favourable treatment are older). In this case the judgement concluded that it was not objectively justified. But in most schemes the favoured group will have more white males and less women and non-whites and the less favoured group will be the opposite. That is more difficult as objective justification does not apply.

Of course its probably not true of all schemes (eg MPs).

Maybe in error, but in my area of the MoJ this ruling is being presented as having ramifications for the whole of the last government`s public sector pension reforms. If it was discriminatory to move some people onto transitional arrangements, then surely the same can be said for people like me who missed the transitional arrangements altogether, in my case by a month.
People can argue that there must a cut off by age somewhere, but doesn't this ruling suggest that any arbitrary decision based on age is now intrinsically unlawful?

Paul_Herring

BobQ wrote: »

but there is an objective justification for age discrimination for those who have relatively little time to adapt.

That is not the main discrimination upon which the judgement was made.

https://www.theguardian.com/law/2017/jan/16/judges-win-pensions-discrimination-claim-against-moj

They alleged they were discriminated against on the basis of age following the 2012 introduction of new judicial pensions that required employee contributions. Theis and Singh additionally claim gender and race discrimination respectively.

Basically, because of recent efforts made to employ more judges because of the colour of their skin or whether they have a vagina (rather than on their abilities,) there are more younger people of colour/people with vaginas that were adversely affected, and it is this premise upon which the action was sought.

jamesd

Paul_Herring wrote: »

there are more younger people of colour/people with vaginas that were adversely affected, and it is this premise upon which the action was sought.

That was the premise for only part of the action, not the main age part, para 1. Age was the primary factor and those were incidental to age because of the different compositions of the workforce by age, described as a "brief postscript" to their main submissions in para 122. Hence the primary decision is age discrimination in para 125 and the race and gender discrimination are "indirect discrimination" covered in paras 122-124.

It's remarkable how much misrepresentation is going on when it's easy to go and read the decision and see what it really said. In this case it seems that any reading of it that you did didn't include reading even the first numbered paragraph of the decision on page 1.

jamesd

BobQ wrote: »

The judges decision seems to have been purely about age discrimination.

That is not so. It was also found to be discriminatory on grounds such as gender that were different for different age cohorts in the employee base. Because age was in effect acting as a selector that directed the consequences more heavily towards those groups that are more highly present in the younger cohorts.

jamesd

Tromking wrote: »

Maybe in error, but in my area of the MoJ this ruling is being presented as having ramifications for the whole of the last government`s public sector pension reforms.

Not in error, as will be apparent to anyone who has read [URL="https://www.judiciary.gov.uk/wp-content/uploads/2017/01/mccloud-v-moj.pdf
"]the decision[/URL]. Which seems to be only me among those who are trying to discuss it here.

It'll be a particular issue where efforts have been made to increase the diversity of a workforce, so producing different ratios of legally protected from discrimination and unprotected classes of employees in different age cohorts. Disability would be another potential area of application that wasn't involved specifically in this case.

Tromking wrote: »

If it was discriminatory to move some people onto transitional arrangements, then surely the same can be said for people like me who missed the transitional arrangements altogether, in my case by a month.
People can argue that there must a cut off by age somewhere, but doesn't this ruling suggest that any arbitrary decision based on age is now intrinsically unlawful?

Yes, if it is arbitrary. There has to be an objective justification and the judge dismissed the most common tropes that are used.

The judge did not rule that age was inherently wrong, though, just that there must be proper and objectively justified reasons to use age. But by dismissing the tropes he made that harder.

However, one thing that the judge very clearly did not do was rule that the core public service pension refrom itself was wrong. In part because he wasn't asked to do that and it would have been poor judicial practice to go beyond what was needed to decide on the matters before him, but also more broadly he seemed to make it clear that it could overall be justified, but may have to be done on a scheme by scheme basis in at least some instances. Note particularity the issue of proportionality in paragraph 31 mentioning that the loss for judges was "very significantly greater than in the case of other public service employees" that seems to dramatically lower the bar for part of the justification need in many other schemes.

jamesd

It appears that this decision implies that firefighters have a strong case because of the disproportionate effect on them due to the combination of an aerobic fitness test that will usually force leaving the job well before the later retirement age in the new scheme.

That may seem like good news for firefighters but I think that it will turn it into a "two career" occupation like the military, with mandatory "up or out" promotion rules that will force departure before the physical fitness test does. Maybe a new standard firefighter to ambulance/paramedic progression if the services can be synched up.

BobQ

jamesd wrote: »

Far from recommending transitional protection, the portion you misrepresented was explaining part of why no more than preserving accrued rights should be done. And this tribunal delivered just what Hutton wrote about it being impractical age discrimination, ruling it unlawful.

Paragraph 41 quotes the introduction to Hutton saying that this preservation of accrued benefits would be fair to those over 50.

But see the next post for the rest of para 21.

James, you accuse me of misrepresentation and partial quotes. I see no reason for such pejorative language. I quoted a full paragraph from the Executive Summary (para 50) of the Hutton Report. To suggest some deliberate distortion on my part is absurd.

There is some inconsistency in the way the term transitional is used. Sometimes it refers to the protected rights in the above paragraph for those over 50 and sometimes it is used to refer to the period over which those in the old scheme transition to the new scheme.

I was responding to the point made by jimi_man that "The original Hutton proposals didn't contain any such protections; it was recommended that everyone should go straight on to the new pension scheme......" That is simply incorrect, Hutton recognised that there would need to be some protections and that was said in the Final Report. It did not say that everyone should move to the new scheme as was stated.

I do not doubt the unions wanted protections for those close to retirement and for those that were just under 50 to a letter degree, but how this was implemented was the issue. As you note there are other ways of doing this.

BobQ

jamesd wrote: »

So far as the union or government aspect goes, paragraph 21 of the decision continues with quotes that the government did not agree with Hutton and thought that there should be some age-based transitional protection, it's well worth a read. However, you should then go on to read paragraphs 43 and 44 and 45 where there are quotes about the great importance attached by the unions to going beyond just preserving acrued benefits.

As paragraph 47 says, it was clearly "an important reason - and probably the most important reason" to satisfy the unions that the government went beyond the accrued rights preservation of Hutton and added the age thresholds for transitional protection that this tribunal has now ruled unlawful for judges.

Of course the unions attached great importance to minimising the impact of changes. They were faced a Government that was advocating radical changes that effectively reduced a valuable benefit at a time when contributions were being increased.

The priorities of a union is to protect its members (protecting all staff is a secondary consideration and protecting future employees is tertiary). The advocacy of transitional protection was simply to improve the terms for some older members in the same way that advocating a slightly higher accrual rate for those in the new scheme was improving terms for younger members. It is really the Government's job to comply with the Equality Act. The EIA appears like a load of waffle which is basically what the court seems to have concluded.

jamesd

BobQ wrote: »

James, you accuse me of misrepresentation and partial quotes. I see no reason for such pejorative language. I quoted a full paragraph from the Executive Summary (para 50) of the Hutton Report. To suggest some deliberate distortion on my part is absurd.

Yes, it seems that portion of 7.34 was in the executive summary, but that still leaves you claiming that it meant the opposite of what it really meant and then asserting that people less than ten years from retirement would be forced to wait six years when Hutton's 7.35 said that they could retire at the original age 60 with little reduction or wait only a little longer to get the same benefit. Whether deliberate or not you did end up substantially misrepresenting those things when we had a judgement that accurately explained them to refer to.

BobQ wrote: »

I was responding to the point made by jimi_man that "The original Hutton proposals didn't contain any such protections; it was recommended that everyone should go straight on to the new pension scheme......" That is simply incorrect, Hutton recognised that there would need to be some protections and that was said in the Final Report

jimi_man was discussing the age-based transitional protection that this decision addressed. Hutton did not recommend that, just the preservation of accrued benefits with the salary link and NPA for them.