The UK Government has lost an appeal against an employment tribunal decision that transitional pension arrangements for more than 200 judges constituted unlawful age discrimination.
Sir Alan Wilkie in the Employment Apeal Tribunal upheld a ruling that the Judicial Pensions Regulations 2015, which established the New Judicial Pension Scheme in place of the Judicial Pension Scheme, with reduced pension benefits and less favourable tax treatment, discriminated against members of the latter scheme who were born after 1 April 1957 in providing less protection for the accrued rights of members born later. They also sustained significantly greater losses than other public servants whose pensions were also reformed.
On appeal the Government argued that the employment judge misdirected himself by applying the wrong standard of scrutiny on whether the aim was legitimate, and failed to accord the margin of discretion to which the Government was entitled in respect of social policy aims. Although he considered whether the means adopted had been proportionate, he was disabled from doing so by his erroneous decision to conclude that the Government had not established legitimate aims.
Sir Alan ruled that there had been "a series of misdirections" by the employment judge in his understanding and/or application of the facts and the evidence. However, when he considered the question of proportionate means, he did so on the assumption that the Government 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. As a result, his decision that the appellants had failed to show their treatment of the claimants to be a proportionate means of achieving a legitimate aim was correct and, accordingly, this appeal is dismissed."
He granted the Lord Chancellor and Ministry of Justice permission to appeal to the Court of Appeal. The Government said it was considering the findings. It has until 19 March to file grounds of appeal and skeleton arguments.