More than 200 judges have had a claim upheld today for unlawful age, race and sex discrimination and equal pay against the Lord Chancellor and the Ministry of Justice, in relation to changes made to their pension entitlements.
Judge Williams at the London Central Employment Tribunal held that the respondents had discriminated against younger judges by requiring them to transfer from the Judicial Pension Scheme to a new scheme in April 2015 whilst allowing older judges to remain in the original scheme, and that this discrimination could not be justified.
The new scheme offered a lower rate of accrual, no separate lump sum payable on retirement, normal pension age rising with state pension age rather than being held at 65, and a lower surviving spouse's or civil partner's pension. Due to the value of the pension as a proportion of the judge's overall remuneration, and the further loss of a previous tax protection, the loss sustained was much greater than suffered by other public servants whose pension arrangements were also reformed: it was agreed that at least £30,000 capital would have to be invested annually to provide a life annuity to replace the lost benefits.
The transitional measures complained of protected those with less than 10 years to their pension age. This was justified by the Government as protecting those closest to retirement from the adverse effects of pension reform. However, as the tribunal observed, those closest to retirement were least affected by the changes.
"To set out consciously to treat more favourably a group who, as was well known at the time, were the least adversely affected by the reforms appears counter-intuitive and at very least calls for... a rational explanation", Judge Williams said. The Government's reasons were not supported by evidence, and it had not been shown that the aim of consistency with others in the public sector was "capable of justifying derogation from the principle of non-discrimination on the ground of age".
Nor were the measures proprtionate, because one group was protected while the other suffered a severe adverse impact. There was also an indirect discriminatory effect on female and ethnic minority judges, more of whom had been appointed in recent years.
Shubha Banerjee from the employment team at Leigh Day, who acted for the claimants, commented: “This is a great victory for our clients, many of whom sit alongside older judges who were appointed some years after them but who are, in effect, paid more purely because they are older.
“The fact that there is a significant number of female and BME judges in the younger group simply compounds the unfairness of the changes that were made to judicial pensions."