The London Central Employment Tribunal has ruled that the Ministry of Justice (MoJ) and Lord Chancellor has discriminated against judges in relation to changes to the judicial pension scheme.
The case, which was brought by 210 judges, including six High Court judges, centres around the closure of the judicial pension scheme on 31 March 2015. Following the closure, serving judges were transferred to a new judicial pension scheme, however older judges who were full protection members or tapered protection members, were able to remain in the original scheme until their retirement or the end of their tapered protection period.
The original judicial pension scheme provided an annual pension which accrued at the rate of 1/40th of a judge’s final pensionable pay, multiplied by the number of year’s service up to 20, as well as a lump sum payable on retirement at the rate of 2.25 times the annual rate of pensions. The normal pension age was set at 65 and a surviving spouse’s or civil partner’s pension was paid at half the rate of the member’s pension. The new scheme in comparison offers an annual pension that accrues at the rate of 1/43rd of pensionable pay on a career average basis with no upper limit on the length of service. No lump sum is provided and the surviving spouse’s or civil partner’s pension is paid at 3/8th of the rate of the member’s pension.
The claimants argued that permitting older judges to remain in the pension scheme while requiring younger judges to enter the new, less favourable scheme, constituted age discrimination.
A full protection member is an individual who was an active member of the judicial pension scheme both on 31 March 2012 and 31 March 2015 and who would reach a normal pension age under that scheme before 1 April 2022. A tapered protection member is an individual who was an active member of the judicial pension scheme on those same dates, who would reach normal pension age between 2 April 2022 and 1 September 2025. The tribunal found therefore that a judge’s status with regards to the pension scheme depended entirely on age.
The respondents contended that the changes to the pension scheme fulfilled the legitimate aim of protecting those who were closest to retirement from the financial effects of pension reform, however the tribunal found no evidence to support this.
The tribunal also upheld that the changes amounted to indirect race and sex discrimination by disproportionately impacting female and black, Asian, and minority ethnic (BAME) judges.
Shubha Banerjee, an employment lawyer at Leigh Day, which represented 204 of the judges, said: “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.”
Shah Qureshi, partner and head of the employment department at Bindmans, which represented the six High Court judges, added: “The Lord Chancellor has failed to justify these discriminatory reforms. These reforms not only discriminate against younger judges but also disproportionately impact on women and ethnic minorities. The protection of those closest to retirement at the expense of younger judges was not a legitimate aim nor was it proportionate. Indeed the tribunal noted that younger judges compelled to join the new scheme are the worst affected by the reforms. The judgment also makes clear that there were non-discriminatory alternatives open to the government.”
A government spokesperson said: “We are disappointed by the court’s findings and will be considering whether to appeal the judgment.”