Mrs M Newby and Others and Mr M Paskin and others v HM Revenue and Customs and Others: 2400627/2020 and Others (See Schedule)
| Judgment Date | 14 January 2022 |
| Citation | 2400627/2020 and Others (See Schedule) |
| Date | 14 January 2022 |
| Published date | 26 January 2022 |
| Court | Employment Tribunal |
| Subject Matter | Age Discrimination |
Case Numbers: 2400627/2020 & others
1400830/2020 & others
See Schedule
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EMPLOYMENT TRIBUNALS
Claimants: Mrs M Newby and others (see Schedule)
Mr M Paskins and others (see Schedule)
Respondents: Her Majesty’s Revenue & Customs and others (see Schedule)
PRELIMINARY HEARING
Heard at: Manchester (public preliminary hearing by CVP)
On: 6-7, 9-10, 13 and 16-17 December 2021
Before: Judge Brian Doyle
Ms Anne Gilchrist
Mr John Murdie
Appearances
For the claimants: Mr Jack Mitchell, Counsel
For the respondents: Mr Adam Tolley, Queen’s Counsel
RESERVED JUDGMENT
By reference to the sample cases, the respondents conceded that in their application
of the Civil Service Compensation Scheme to the sample claimants, and because of
the protected characteristic of age, they treated those sample claimants less
favourably than the respondents treated or would treat others, within the meaning of
section 13(1) of the Equality Act 2010. However, applying section 13(2) of the Act, the
protected characteristic being age, the respondents did not discriminate against those
sample claimants for the purposes of section 39(2) of the Act because the
respondents have shown that their treatment of those sample claimants was a
proportionate means of achieving a legitimate aim.
Case Numbers: 2400627/2020 & others
1400830/2020 & others
See Schedule
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REASONS
Introduction
1. As explained by Mr Tolley QC in his opening written submissions – and the
Tribunal adopts this introduction from those submissions – these claims raise a
substantively complex point about alleged unjustifiable direct age discrimination
under the provisions of the Civil Service Compensation Scheme (“the CSCS” or
“the Scheme”) in relation to the payment of compensation benefits in cases of early
termination of employment on grounds of voluntary redundancy (and voluntary exit)
and compulsory redundancy. Neither party suggests that there is any difference of
principle between a termination on grounds of voluntary redundancy and one on
grounds of voluntary exit. Subsequent references to voluntary redundancy should
be taken also to include voluntary exit, unless the context suggests otherwise.
2. There are many such claims before the Employment Tribunal, supported by the
PCS trade union (“PCS”). The large number of claims led to the making of a
Presidential Direction on 30 March 2020 for their appropriate case management
[998-1001]. Direct age discrimination, subject to the defence of justification and the
application of time limits, is conceded. Following case management orders in the
present proceedings, the issue of justification has been ordered to be addressed
first (before any issue of jurisdiction based on time limits) and by reference to
sample cases.
3. There are six such sample cases which arise for determination, two in each of the
following types of case: (1) Compulsory redundancy at or above normal pension
age on termination of employment (Ms Kathryn Kennedy and Ms Adina Clarkson);
(2) Voluntary redundancy at or above normal pension age on termination of
employment (Mr Peter Hopkins and Mr James Sweeney); and (3) Voluntary
redundancy within 15 months of normal pension age on termination of employment
(Ms Anne Perry and Mr Paul Conlon). This third category of case involves the
application of a Taper provision in respect of the amount of compensation payable
under the terms of the Scheme.
4. The sample claimants are represented by Thompsons Solicitors (instructed by
PCS) and by Mr Jack Mitchell, Counsel. The respondents are represented by the
Government Legal Department and by Mr Adam Tolley QC.
5. The Scheme has been in operation for nearly 50 years, having been set up
originally under the Superannuation Act 1972. It has undergone several revisions
and iterations, although the current version dates to 1988. It originally formed part
of the Principal Civil Service Pension Scheme (“the PCSPS”), but since 1995 it has
been contained in a separate document.
6. The CSCS operates in conjunction with, and alongside, the PCSPS, which is an
occupational defined benefit scheme, which provides for the payment of pension
benefits to civil servants. There are several different sections of the PCSPS, with
different normal pension ages. The sections of the PCSPS engaged on the facts of
these claims are the “Classic” scheme (of which five of the six sample claimants
Case Numbers: 2400627/2020 & others
1400830/2020 & others
See Schedule
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were members) and the “Premium” scheme (of which Ms Kennedy was a member).
Nothing turns on the difference between these versions of the PCSPS for present
purposes. Both versions had a normal pension age of 60. A member of the PCSPS
may take his or her full pension benefits at the normal pension age. It is open to
him or her (from age 50) to take early payment of pension, subject to an actuarially
calculated reduction for early receipt.
7. Civil servants who are dismissed on grounds of redundancy are eligible to be
considered for a compensatory payment calculated in accordance with a formula
based on length of service and age at the date of termination of employment. The
maximum payment in relation to voluntary redundancy is 21 months’ pay. In
relation to compulsory redundancy, it is 12 months’ pay. The claimants do not seek
to challenge those maxima.
8. In relation to voluntary redundancy: (1) The award made under the CSCS to a
person below normal pension age at the date of termination will, subject to the
Taper provisions (see below), be calculated on the basis of one month’s pay per
year of service, up to the maximum of 21 months’ pay; (2) The award to a person
at or above normal pension age at the date of termination and who has at least six
years’ service will be six months’ pay (or the equivalent of statutory redundancy
pay, if higher).
9. There is a specific provision of the Scheme, which is in issue in these claims,
whereby if the employee is within 15 months of normal pension age at the date of
dismissal, any compensatory payment that he or she might otherwise receive is
reduced by 1 month’s pay for each month of service within that period of 15
months. This provision is known as “the Taper”. By way of example, if an employee
in the Classic scheme with more than 21 years’ service is aged 59 (and so within
12 months of normal pension age) at the date of his or her dismissal on grounds of
voluntary redundancy, any payment made will be limited to 18 months’ pay (that is,
it will be “tapered” by reference to the 3 months in question).
10. References are also made to “the Cap” (so-called), although this might be better
understood as a minimum payment provision (the “Minimum Payment”). In short,
instead of the Taper operating down to a nil payment at normal pension age (which
is what happens in cases involving dismissal on grounds of efficiency), there is a
minimum payment of 6 months’ pay available to all employees with at least 6 years’
service. If this is less than the amount which would have been produced by the
application of the statutory redundancy pay formula, the amount payable is that
higher amount.
11. In relation to compulsory redundancy: (1) The award made under the CSCS to a
person below normal pension age at the date of termination will, subject to the
Taper provisions (see below), be calculated based on 1 month’s pay per year of
service, up to the maximum of 12 months’ pay. (2) The award to a person at or
above normal pension age at the date of termination and who has at least 6 years’
service will be 6 months’ pay (or the equivalent of statutory redundancy pay if
higher).
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