BMA to sue government over NHS pension scheme age discrimination

GPs who lost out financially from changes to the NHS pension scheme in 2015 have been backed by the BMA to bring age discrimination claims against the government.

Lawyers representing the BMA have written to health secretary Matt Hancock - along with health ministers in other UK nations - warning that the union 'intends to support a number of its members in bringing age discrimination claims' over 'the discriminatory impact of the pension changes that were introduced in 2015'.

The BMA says that younger doctors who were forced to join the 2015 NHS pension scheme were discriminated against because some older doctors were allowed to retain greater benefits from previous pension schemes as part of a transitional deal.

The BMA says it believes that many doctors were 'forced to join a pension scheme that will result in huge financial losses when they retire'.

NHS pensions

The warning over legal action follows a Court of Appeal ruling last December, in which judges found that changes to pensions for judges and firefighters were discriminatory.

BMA interim treasurer Dr Trevor Pickersgill said: 'In 2015, the NHS closed two sections of the NHS pension scheme, moving many NHS staff onto a newer 2015 scheme with less valuable retirement benefits. However, it also allowed some older doctors to stay on the previous schemes until they either retired or they moved to the new scheme at the end of a fixed transition period.

'The BMA alleges that the failure to allow younger doctors to benefit from these transitions constitutes unlawful age discrimination.'

Dr Pickersgill said that if a government appeal against the Court of Appeal ruling fails, it should accept that the pension reforms were discriminatory.

Unlawful discrimination

He said: 'The government has said it will appeal this decision, but the BMA is demanding that, should that appeal fail, the government will agree that 2015 NHS Pension Scheme does unlawfully discriminate against its younger members. The BMA wants the government to scrap the scheme so that doctors are not adversely affected by it in later years.

'Many doctors had been working towards and planning for their retirement based on membership of the former sections of the NHS pension scheme, only for those plans to be completely disregarded once the government’s discriminatory changes were brought in.'

The letter from BMA lawyers says that the union expects claims will be brought by 'consultants, specialty doctors, junior doctors and GPs'.

Specialist medical accountant Andrew Pow, a partner at Hall Liddy and board member at the Association of Specialist Medical Accountants (Aisma) told GPonline that the impact on consultants was greater than for GPs because of the loss of final salary schemes in secondary care.

He said that if the government appeal failed, the impact would be difficult to quantify. He warned: 'It will be difficult to uplift everyone.'

When the 2015 NHS pension scheme took effect, doctors within 10 years of their normal pension age on 1 April 2012 did not have to join the new pension scheme.

Doctors between 10 and 13.5 years of their normal pension age on 1 April 2012 benefited from 'tapering protection', with their date for joining the new scheme delayed, while pension schem members more than 13.5 years from their normal pension age on 1 April 2012 were obliged to join the scheme from 1 April 2015.

A DHSC spokesperson said: 'In 2015 reforms were introduced to ensure that public service pensions are affordable and sustainable in the long term. In December 2018, the Court of Appeal ruled that the "transitional protection" offered to some members as part of the reforms amounts to unlawful discrimination.

'The government is seeking permission to appeal this decision and continues to believe that the reforms were necessary, appropriate and lawful. If the appeal is unsuccessful, the court will require steps to be taken to compensate employees who were transferred to the new schemes. However this decision does not alter the government’s longstanding objective to ensure public service pensions are fair to public service workers and fair to other taxpayers.'

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