Do I need to make a claim for age discrimination because of the McCloud judgement?

Last updated: 07 Apr 2022

You do not need to make a claim for the remedy to the discrimination to apply. The Government has conceded that discrimination occurred and announced that the remedy will apply across the public sector schemes, irrespective of whether individual claims have been submitted. You can read the written statement here.

In a successful discrimination claim there are two main elements to compensation. Firstly a tribunal can award damages in respect of the financial loss suffered, the Government’s statement referred to above should cover this element for most people. The second part of any claim would be for injury to feelings. Injury to feelings compensation can be very unpredictable and is usually dependent on the individual claimant giving evidence about the level of distress caused to them by the discriminatory action. But in a case like this, which affects multiple claimants and is in respect of changes to the pension scheme, any award is likely to be at the lower end.

We are also aware of a union that has announced it is looking to take forward claims for ‘injury to feelings’ and other loses on behalf of its members that have experienced detriment caused by the discrimination.

The time limit for commencing a claim in the tribunal in this sort of claim would be three months from the end of employment (this can be complicated so please seek individual advice if you have retired or left employment for other reasons), or from when the discrimination occurred. The prospective remedy ended the ongoing discrimination on the 1 April 2022, therefore the three month time limit ends on the 30 June 2022.

The HM Treasury consultation from February 2021 indicated each scheme will establish a process for the consideration of rectification of ‘contingent decisions’. These are decisions that members would not have made, had the unlawful discrimination not occurred. The consultations on the proposed retrospective remedies for each public sector scheme will outline the proposals for this process.

If you’ve experienced additional losses or believe you have a claim for injury to feelings, then there may be grounds for a separate claim. If won this could provide compensation in addition to the remedy determined by the Government commitment.  If you would like to explore this please contact us and we will provide further advice.

It is important to note that in the Civil Service, the new pension arrangements had a faster accrual rate than the legacy arrangements. As a result it is difficult to determine whether a member has been put into a position of detriment as a result of the discrimination, as members could receive a higher pension under the Alpha scheme. When a member chooses to retire, along with other factors, will determine whether they would be better off in their original scheme, or the Alpha scheme for the remedy period.

Prospect will be keeping a close eye on the changes to the scheme and will update these pages as developments occur.