The McCloud case relates to complaints by over 200 members of the judiciary that the transitional provisions in the NJPS subjected them to age discrimination (and in some cases, race discrimination and sex discrimination / unequal pay).
Before 1 April 2015, the claimants were all members of the previous final salary Judicial Pension Scheme (JPS). By section 18 of the Public Service Pensions Act 2013 and the Regulations made pursuant to it, the JPS was closed on 31 March 2015, and on 1 April 2015 serving judges were compulsorily transferred into the replacement NJPS, which provided benefits on a Career Average Revalued Earnings (CARE) basis. The transitional arrangements provided exceptions to this compulsory transfer which permit older judges either to:
- remain members of the JPS until retirement, rather than becoming members of the NJPS (full protection members); or
- remain members of the JPS until the end of a period of tapered protection (dependent on their age) and then become members of the NJPS (tapered protection members).
The claimants either received no protection and had to transfer to the NJPS on 1 April 2015 (unprotected members) or are tapered protection members. The tapered protection members will be transferred to membership of the replacement NJPS at some point between 1 April 2015 and 1 February 2022 (depending on the applicable taper period, as based on their age).
In relation to discrimination, the Ministry of Justice (MoJ) conceded at the Employment Tribunal that the transitional provisions involve less favourable treatment of the claimants because of age and also that, because of the gender and racial profile of the full protection members, tapered protection members and unprotected members, the provisions have a disproportionate impact on female and black / ethnic minority (BAME) judges. However, the MoJ sought to argue those transitional provisions were objectively justified, as being a proportionate means of achieving a legitimate aim (the legitimate aim being to protect those closest to retirement from the financial effects of pension reform).