Legitimate Aim and Proportionality

February 1st, 2018

On 29 January 2018 the Employment Appeal Tribunal (Sir Alan Wilkie) handed down Judgment in discrimination cases relating to the transitional provisions put in place by for example the London Fire and Emergency Planning Authority, under the Public Service Pensions Act 2013, as part of major changes to public sector pensions following the Hutton Report.

The EAT ruled that, in favouring those closer to retirement age, a legitimate social policy aim was being pursued that was capable of justifying direct discrimination. The EAT further ruled that an ET must make up its own mind as to whether the transitional provisions in support of that legitimate aim are proportionate having regard to their discretionary effect.  That is not a matter for a “margin of discretion”.

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