In the case of McCloud v Lord Chancellor and Secretary of State for Justice, an Employment Tribunal has found that age discriminatory transitional arrangements relating to changes to judges' pension arrangements were not objectively justified and therefore breached age discrimination legislation.

The changes to the judges' pension arrangements involved replacing the existing pension scheme with a new less favourable scheme. Transitional provisions allowed judges who would reach normal pension age by 1 April 2022 to continue to earn benefits on the basis of the old scheme, and judges who would reach normal pension age between 2 April 2022 and 1 September 2025 were allowed to continue to accrue on the old basis for a period of "tapered protection". Thus the protection period was set at 10 years from the introduction of the changes. A ten year transitional period had been agreed in the context of various other public sector pension schemes.

The Employment Tribunal held that the transitional measures, which were by their nature age discriminatory, were not objectively justified. Older judges would in any event be least affected by the pension reforms, so providing them with special protection was not a legitimate aim. Whilst consistency with other public sector pension reforms was capable of being a legitimate aim, the Government had failed to provide evidence to demonstrate that consistency in this case served a social policy objective, particularly in the context of judges' pension arrangements, which differed significantly from other public sector pension arrangements.

Since the Employment Tribunal decision in the judges' pension case, a differently constituted Employment Tribunal has rejected a legal challenge based on age discrimination legislation to the transitional arrangements put in place in connection with changes to pension arrangements for firefighters. The Fire Brigades Union (FBU) has announced that it will appeal the decision. It states in its announcement that its legal advisers have commented that it is extremely difficult to see how the two decisions can be reconciled.

Employment Tribunal decisions are not binding on other Employment Tribunals or courts. The two Tribunal decisions reaching opposite conclusions on the question of whether age discriminatory transitional measures were objectively justified illustrates the continued uncertainty around this area of law. The FBU has announced that it will appeal the judgment in relation to firefighters, and the government is appealing the judgment in relation the judges' pension case, so this is an area of law where we can expect to see further developments.