Transitional provisions on judicial pensions not proportionate
Ministers unlawfully discriminated against more than 200 judges on grounds of age when it introduced transitional pension arrangements, the Employment Appeal Tribunal (EAT) has held.
Dismissing the government’s appeal, in Ministry of Justice v McCloud, Mostyn & Ors Appeal No. UKEAT/0071/17/LA, Sir Alan Wilkie held that ministers failed to show the pension arrangements were a proportionate means of achieving a legitimate aim.
The previous judicial pension scheme closed in 2015. Only judges above a certain age were allowed to remain members of the historic scheme, and the rest of the serving judges were transferred to a new scheme that provides less valuable benefits.
Shubha Banerjee, solicitor at Leigh Day, who represents 230 judges, said: ‘Following the report of Lord Hutton in 2011 into ways of reducing the costs of public sector pensions, the government sought to make changes across the public sector including to the pensions of police, firefighters, teachers, prison officers and others.
‘For most public sector groups, changes to pension were made according to age—younger members of schemes were required to leave their very beneficial schemes and instead offered membership of less valuable schemes whilst older scheme members were allowed to remain in their very beneficial schemes. Changes were made to judicial pensions applying this distinction.’
The judges brought claims for direct discrimination and, as there were higher numbers of female and black and minority ethnic judges in the affected group, claims for indirect race and sex discrimination and equal pay.
Sir Alan said: ‘I have identified, in respect of the question of legitimate aims, a series of misdirections by the EJ (Employment Judge) by reason of his misunderstanding of and/or misapplication of the facts and the evidence.
‘However, when the EJ considered the question of proportionate means, he did so on the assumption that the appellants had established legitimate aims. His approach to that issue was, in my judgment, correct in law and his decision, based on the largely undisputed evidence, cannot be faulted.’
An MoJ spokesperson said: ‘We recognise and value the important role of the judiciary. We are considering the court's findings and whether to pursue an appeal against this judgment.'
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