Tribunal rules judges were subject to age discrimination in pensions case

In January 2017, the London Central Employment Tribunal ruled that the Ministry of Justice and Lord Chancellor had discriminated against judges with regards to changes to the judicial pension scheme.

Following the closure of the judicial pension scheme in March 2015, 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 stay in the original scheme until their retirement or the end of their tapered protection period.

The claimants, a group of 210 judges, argued that this arrangement constituted age discrimination because younger judges were treated less favourably because of their age.

The respondents contended that the changes to the judicial pension scheme fulfilled the legitimate aim of protecting those who were closest to retirement from the financial effects of the pension changes.

The tribunal found that the changes to the pension scheme were discriminatory on the grounds of age, and that the reasons for doing so were not justified by a legitimate aim.

Claire Bell, partner at law firm DLA Piper, said: “Unlike other forms of direct discrimination, age discrimination can be objectively justified, so employers need to ensure that if they are going to do something that is, on the face of it, potentially discriminatory, that the changes are objectively and reasonably justified by a legitimate aim and it is a proportionate means of achieving that aim.

Organisations should avoid making assumptions and carefully consider how transitional arrangements would work in practice, added Faith Dickson, partner at Sackers. “[In this case] the government has adopted a very generic objective justification that probably did work for certain groups, but it didn’t work for the judges. Just because [an] objective justification works for one part of [the] workforce, doesn’t necessarily mean that it works for everybody and I think it’s important for employers to look at the different characteristics of the different parts of their workforce.”

The London Central Employment Tribunal also upheld the claims that the changes to the pension scheme were indirectly discriminatory on the grounds of race and sex because these had a disproportionate impact on female judges and judges of black, Asian, and minority ethnic (BAME) origin, who had been more recently appointed.