Update on public sector pensions appeal

 Joanne Galbraith-Marten 3 Dec 2019

Two legal cases concerning public sector pension schemes for judges and firefighters will have implications for members in the 1995/2008 NHS Pension Scheme.


The two legal cases began in 2015/2016 and considered whether members of the judges’ and firefighters’ pension schemes were discriminated against on the grounds of age. This was based on the fact that younger scheme members were eligible to less favourable benefits than older scheme members during a transition period after their pension schemes changed.

Members of the schemes who had less than 10 years before retirement were entitled to full protection, so after the change they retained all the benefits of the old scheme. 

Those with between 10 and 14 years until retirement had tapered protection, meaning they retained some benefits for a limited period. 

Those with more than 14 years until retirement got no protection and were placed immediately in the new less favourable scheme.

The Government accepted it had discriminated against the claimants but argued that this was a proportionate means of achieving a legitimate aim – to protect those closest to retirement.

The judge claimants were successful in the Employment Tribunal, and later in the Employment Appeal Tribunal and Court of Appeal when the Government appealed the case. 

The firefighter claimants were unsuccessful at first because the Employment Tribunal held the transitional provisions were a proportionate means of achieving a legitimate aim. However, when the firefighter claimants appealed this decision, although the Employment Appeal Tribunal agreed with the Employment Tribunal’s findings on a legitimate aim, it remitted the case for further consideration as to whether the means to achieve that aim were proportionate. 

In December 2018, the Court of Appeal decided that both the judges’ and firefighters’ age discrimination claims should succeed.

All the age discrimination claims have now been sent back to the Employment Tribunal to determine remedy but the Government did request permission to appeal to the Supreme Court. The Government’s application was refused on 27 June 2019 and the Court of Appeal findings stand.

These two cases will have implications in respect of the transitional provisions of the NHS Pension Scheme for members in the 1995/2008 scheme who were subject to tapering protection or no protection when the new scheme came into force on 1 April 2015.

As a result of the Supreme Court’s decision, the government issued a Ministerial Written Statement on 15 July 2019 confirming that it believes that the difference in treatment provided by the transitional arrangements will need to be remedied across all public sector pension schemes including the NHS, civil service, local government, teachers, police and armed forces. The government has indicated that it will approach relevant bodies to initiate discussions and the RCN will be fully engaged in those discussions.

In the meantime, the remedy process is now underway in relation to these cases and the government has agreed an interim declaration that the claimants are entitled to be treated as members of their pre 2015 schemes. However, this is far from straightforward and legislation will be required in order to eliminate the discrimination identified in respect of all the public sector schemes. Those changes will be subject to consultation and again the RCN will be fully engaged. Those discussions will not take place until after the general election.

We will update members when we have more information. Our key priority is to ensure that our members have access to good quality, stable and secure pension arrangements now and in the future.

Please remember, if members are due to retire or their employment is terminated, they only have three months less one day to pursue an age discrimination claim if they believe they have been discriminated against. For further information or advice please contact RCN Direct on 0345 772 6100.

Joanne Galbraith-Marten, Head of Legal (Employment)

Joanne Galbraith-Marten

RCN Head of Legal (Employment)

Jo is Joint Head of RCN Legal Services and has been a solicitor since 2003. She is an employment lawyer and has only ever represented Claimants and Trade Unions. Jo joined the RCN in 2010.

Page last updated - 12/05/2020