Unison v. First Secretary of State
Where the decision of the defendant secretary of state to remove elements of the Local Government Pension Scheme would have been made on other valid policy grounds the court was unable to interfere with that decision.
The claimant trade union (U) applied for judicial review of a decision by the defendant secretary of state making changes to the Local Government Pension Scheme which were to be made in the Local Government Pension Scheme (Amendment) Regulations 2006. The secretary of state took the decision to abolish the "85 year rule" set out in the pension scheme, as laid down in Local Government Pension Scheme Regulations 1997 reg.31 , in order to comply with Council Directive 2000/78/EC on age discrimination. The Directive applied a general framework across all persons in the public and private sector to combat direct and indirect age discrimination. The rule entitled members of the scheme to a full pension prior to the usual retirement age where the sum of (i) their age when employment ended; (ii) their total number of years in the scheme; and (iii) the period between the end of employment and the date of election was 85 years or more. Article 6 of the Directive provided a defence of justification where the discriminatory acts were objectively and reasonably justified by a legitimate aim if the means of achieving that aim were appropriate and necessary. U submitted that (1) the changes put forward by the secretary of state to comply with the Directive were misconstrued in their application as they did not apply to the features of the scheme in issue. U argued that the rule did not constitute age discrimination, was excluded from the scope of the Directive, or alternatively was justifiable as permitted by Art.6; (2) the Government, in failing to show that the transitional provisions for implementation of the Directive would also have been the same independently of its view of its obligations, should have employed them in a similar way as they had been in Scotland. The secretary of state submitted that even if the decision had been made erroneously in his interpretation of compliance with the Directive, the decision to abolish the rule would have been made on other valid reasons and therefore should not be interfered with. He argued that the Government frequently reviewed the cost of the rule and that to retain it would have a significant economic impact.
HELD: (1) The rule was discriminatory on grounds of age and the perceived need to comply with the Directive was prominent in the Government's reasoning for its abolition. However, the secretary of state would nonetheless have removed the rule on other valid policy grounds without the need to comply with the Directive, and his decision could not be interfered with on that basis, R v Broadcasting Complaints Commission, Ex p Owen (1985) QB 1153 and Simplex GE (Holdings) v Secretary of State for Environment (1988) 57 P&CR 306 applied. The cost and financial viability of the scheme was a major consideration. (2) The court was satisfied that the secretary of state's position on the transitional provisions for implementing the Directive would have been the same independently of the view he took of the Government's legal obligations under the Directive. Regulations for England and Wales could not be said to be unreasonable simply because a slightly different decision had been made in another jurisdiction.
 IRLR 926,  BLGR 188,  Pens LR