Mr A Gainey & Others v Secretary of State for Education and 1 other — 2022

At the outset of the preliminary hearing the Leigh Day claimants withdrew their equal pay and indirect race discrimination claims. Those claims were dismissed on withdrawal. The remaining issue determined at this hearing was whether the claimants should receive a declaration of age discrimination arising from the transitional arrangements in the New Teacher Pension Scheme established by the Teachers' Pension Scheme Regulations 2014.

The Tribunal recorded that the age discrimination claims arose from the introduction of the New Teacher Pension Scheme in 2015, which excluded the claimants from the existing Teachers Pension Scheme. It referred to McCloud, where transitional provisions in judicial and firefighters' pension schemes were held to be directly discriminatory on grounds of age and not justified. The Tribunal identified differences between the old and new teachers' schemes including normal pension age, accrual rate, pensionable salary, lump sum, survivors' pension, ill-health retirement provisions, and the cost cap mechanism.

The respondents accepted that financial loss did not have to be shown for detriment. They submitted that individual claimants should still have to establish detriment by reference to personal circumstances, including knowledge of potential disadvantage. The Tribunal accepted the claimants' submissions that the threshold for detriment was low, that knowledge of detriment was relevant to injury to feelings but not to liability, and that the respondent was wrongly eliding knowledge of detriment with detriment itself.

The Tribunal concluded that all claimants were entitled to a declaration under section 124(2)(a) Equality Act 2010 that the First Respondent discriminated against them on grounds of age in the arrangements arising from the New Teacher Pension Scheme transitional arrangements. It recorded that the nature and effect of detriment or less favourable treatment might vary between claimants and would be addressed at remedy. No monetary award was made in this judgment; a preliminary hearing was listed for 28 March 2022 to consider case management orders for assessing remedy, including any injury to feelings award.