To defeat a claim of direct discrimination under the Equality Act 2010, the employer must show that the treatment complained of is in pursuit of a legitimate aim and is a proportionate means of achieving that aim. The aim must be objectively and reasonably justified as pursuing a legitimate social policy of a public interest nature, as distinct from an objective that relates to the individual needs of the particular business, such as cost reduction and improving competitiveness.

If that is proved, the focus then turns to whether the identified aim is legitimate in the particular circumstances of the case and is actually being pursued. Finally, the means of achieving that aim must be both appropriate and necessary. The means must be carefully scrutinised in the context of the particular business in order to see whether they do meet the objective and there are not other, less discriminatory means that would achieve the same result.

In an important test case, the Court of Appeal has ruled that government attempts to protect older judges, and older firefighters, from the brunt of pensions reform amounted to unlawful age discrimination (The Lord Chancellor and Secretary of State for Justice and Another v McCloud and Others).

There was no dispute that the new judicial pension scheme introduced in 2015 was substantially less attractive than its predecessor. Interim measures were adopted that enabled older judges to remain members of the old scheme. Depending on their dates of birth, younger judges were either entitled to time-limited protection against the impact of the changes, or no protection at all.

The firefighters’ pension scheme had undergone similar reforms and the transitional arrangements were essentially the same as for judges. A number of younger judges and firefighters launched proceedings alleging age discrimination. Their claims had mixed, and in some respects conflicting, outcomes following consideration by Employment Tribunals and the Employment Appeal Tribunal.

In ruling on the claims, the Court noted that it was not disputed that the transitional arrangements discriminated against younger judges and firefighters on grounds of their age. The employer in each case had failed to establish that such discrimination was in pursuit of a legitimate aim. In those circumstances, the issue of whether the means of achieving that aim were proportionate did not arise.

In giving guidance for the future, the Court noted that, in adopting the reforms, it was appropriate to afford the government some margin of discretion in relation to both aims and means. However, the extent of that margin was for the Court to decide. It was not sufficient for the government simply to assert that it felt morally right to protect the position of older judges and firefighters. Such an assertion required evidential substantiation in order to defeat the age discrimination claims.