Key Facts
- •Appeal against Mr Justice Choudhury's dismissal of two judicial reviews concerning the Public Service Pensions (Valuations and Employer Cost Cap) (Amendment) Directions ('the Directions').
- •Appellants: Fire Brigades Union ('FBU') and British Medical Association ('BMA').
- •Respondents: His Majesty's Treasury ('HMT') and relevant Secretaries of State.
- •Directions classified McCloud Remedy costs as 'member costs', impacting contribution reductions for FBU and BMA members.
- •Appeal grounds included improper purpose, unlawful discrimination, lack of consultation, and breach of section 149 of the Equality Act 2010.
Legal Principles
Indirect discrimination requires a causal link between the provision, criterion, or practice (PCP) and the particular disadvantage.
Various case law, including *Essop v Home Office*
Cost alone cannot justify discrimination; a legitimate aim beyond cost-saving is required.
*O'Brien v Ministry of Justice*, *De Weerd v Bestuur*
There is no general common law duty to consult; duties arise through statute, promise, established practice, or conspicuous unfairness.
*R (Plantagenet Alliance Limited) v Secretary of State for Justice*, *Moseley v Haringey London Borough Council*
Section 149 of the Equality Act 2010 requires 'due regard' to equality needs; the extent of this regard is fact-sensitive.
*Hotak v Southwark London Borough Council*, *Bracking v Secretary of State for Work and Pensions*
Section 31(2A) of the Senior Courts Act 1981 requires refusal of relief if the outcome would likely be substantially the same without the complained-of conduct.
Senior Courts Act 1981, section 31(2A)
Outcomes
Both appeals dismissed.
The court found the Directions were not made for an improper purpose; classifying McCloud Remedy costs as 'member costs' was within HMT's statutory discretion. No unlawful discrimination was found, as the disadvantage to younger members stemmed from the McCloud Remedy's inherent design, not the PCP itself. The court also found no duty to consult and no breach of the section 149 duty.