The employment tribunal has ruled that the government’s transitional pension arrangements for 210 judges amount to unlawful age discrimination, in a judgment that could have far-reaching consequences for public sector employers.
The tribunal’s judgment, published today, states that the lord chancellor and Ministry of Justice ‘have treated and continue to treat the claimants less favourably than their comparators because of their age.
‘The [lord chancellor and MoJ] have failed to show their treatment of the claimants to be a proportionate means of achieving a legitimate aim.’
Responding to today's ruling, a government spokesperson said: 'We are disappointed by the court's findings and will be considering whether to appeal the judgment.'
Six High Court judges, including Sir Rabinder Singh, were among 210 claimants challenging the lord chancellor and the ministry over transitional provisions regarding pension reforms.
Tribunal judge Stuart Williams reserved judgment following a seven-day public hearing.
Sending his judgment to parties today, Williams said an aim which amounts to an intention to treat one group more favourably and another less favourably, solely by reference to the age of those in the groups cannot, without further rational explanation of the reason for it, be legitimate.
His judgment states: 'The respondents have failed to adduce any evidence of disadvantage suffered by the fully protected and the taper-protected groups of judges which called for redress, or any social policy objective which was served by treating those groups more favourably and the claimant group less favourably.'
He added that the respondents 'have failed to demonstrate beyond the level of "mere generalisations" how consistency in the matter of transitional protection was capable of contributing to their social policy objective, especially since so much in the [judicial pension scheme] was inconsistent with other reformed pension schemes'.
Shubha Banerjee, associate solicitor in the employment team at Leigh Day, representing 204 claimants, 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 [black, Asian and minority ethnic] judges in the younger group simply compounds the unfairness of the changes that were made to judicial pensions.’
Leigh Day says today’s decision could have ramifications for other public sector groups, such as teachers, firefighters and prison officers, who have been subjected to similar negative changes to their pensions.
Solicitor Shah Qureshi, of London firm Bindmans, representing the High Court judges, said: 'The lord chancellor failed to show there was a legitimate aim to the government's discriminatory reforms. The changes discriminate against younger judges and disproportionately impact on women and people from BAME backgrounds.
'[Tribunal judge Stuart Williams] rejected the argument that the protection of those closest to retirement whilst compelling younger judges to join the new pension scheme was a legitimate aim. He points out that this "aim" is essentially a reference to treating a group differently because of age rather than some other reason.
'The tribunal also found that the changes were not proportionate bearing in mind that the changes to the pension scheme are likely to have greater adverse impact on younger judges. It was accepted that judges compelled to transfer to the new scheme would suffer a serious adverse impact on their pensions.'
The judgment states that the cost of the protection provided by the transitional provisions to salaried judges, both fully and taper-protected, is £23m. The cost of including the currently unprotected judges is £70m. If judges who were in fee-paid office before 1 April 2012 and subsequently became salaried are included, the figures rise to £28m and £118m respectively.
For the High Court judges: Blackstone Chambers' Michael Beloff QC and Ben Jaffey QC were instructed by Shah Qureshi and Nina Khuffash of Bindmans.
For the 204 judges: Outer Temple Chambers' Andrew Short QC and Naomi Ling were instructed by Shubha Banerjee and Chris Benson of Leigh Day.
For the lord chancellor and Ministry of Justice: Brick Court Chambers' Martin Chamberlain QC, Old Square Chambers' Ben Collins QC and Littleton barrister Katherine Apps were instructed by the Government Legal Department.