Mr L Gibbons v And others National Crime Agency — 2022

The claimants were former police officers employed by the National Crime Agency or its predecessor SOCA. Their case was that the ROSS para 6.3 retirement-and-return arrangement, and in particular the continued application of abatement, directly or indirectly discriminated against them because of age. The tribunal recorded that the claim form originally also included unlawful deduction from wages complaints, but by the final hearing those claims had been struck out save for one withdrawn claim, so the reserved judgment dealt with the age discrimination claims only.

On direct age discrimination, the tribunal rejected the claim on several grounds. It held that the relevant condition was membership of the police pension scheme for 30 years, not age itself, and that there was no exact correspondence between the alleged disadvantaged group and the protected age group because many people in the age band identified by the claimants would not have 30 years' service. The tribunal also held that no valid hypothetical comparator could be constructed because the scheme did not permit retirement and return below 48 years of age, and that the comparison would require assuming treatment contrary to the Police Pensions Regulations 1987. It further held that the claimants had not shown a detriment, because taking up the ROSS scheme was, taken as a whole, a financial benefit even though they objected to features such as abatement.

On indirect age discrimination, the tribunal identified the PCP as the policy that if the claimants retired and returned to work without open competition, they would be subject to the abatement rules in clause 6.3 of the ROSS scheme. It held that the PCP was not applied to persons who did not share the relevant age characteristic, because the policy was itself defined by reference to that characteristic. In any event, the tribunal held that the claimants had not shown the required particular disadvantage when the relevant pool was confined to those who had retired and returned without open competition, since abatement applied to all in that pool. The tribunal therefore dismissed the indirect discrimination claims as well.

The tribunal noted that 10 of the 15 claimants were out of time when the claims were presented, measured from the last day on which abatement was applied to them, and it refused to exercise the just and equitable discretion under s.123 Equality Act 2010. Because it had found no legal merit in the discrimination claims, it considered it would be idle to extend time. The tribunal declined to determine the respondents' justification defence, and the proceedings as a whole were dismissed.