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MoJ discriminated against judges, tribunal finds

Lord Chancellor fails to show treatment of claimants ‘to be a proportionate means of achieving a legitimate aim’ in pensions dispute

16 January 2017

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An employment tribunal has upheld the claims of over 200 judges for unlawful age, race, and sex discrimination and equal pay against the Ministry of Justice over changes made to their pension entitlements.

The legal challenge, brought against the Lord Chancellor last year by 210 judges, followed changes made to judicial pensions in April 2015. From that date, judges born after 1 April 1957 were required to leave the judicial pension scheme and were instead offered membership of what judges argued was a far less beneficial scheme.

The old pension scheme provided an income of one-fortieth of a judge’s final pensionable pay multiplied by their length of service. It also provided a lump sum on retirement of two and a quarter times the annual rate.

The new pension scheme, however, has no such lump sum payments, accumulates at a slower rate – one-forty-third of the final pensionable pay per year of service – and includes contribution rates that rise to 8 per cent of pensionable pay.

Publishing its reserved judgment today, the London Central Employment Tribunal held that the MoJ had discriminated against younger judges by requiring them to leave the old scheme in April 2015 while allowing older judges to remain in it.

Further, the tribunal found that the changes caused younger judges to suffer a disproportionate loss to their pensions purely because they were younger and that this discrimination could not be justified.

The judgment states that the Lord Chancellor and MoJ ‘have treated and continue to treat the claimants less favourably than their comparators because of their age’ and ‘failed to show their treatment of the claimants to be a proportionate means of achieving a legitimate aim’.

Shubha Banerjee, an associate solicitor in the employment team at Leigh Day, who 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,’ she continued.

‘According to Judicial Office Statistics, about one-third of all judges in England and Wales last year were female, and only 7 per cent described themselves as from a black or other minority ethnic background.’

The judges who brought the discrimination claim cover all disciplines and jurisdictions, and include six High Court judges: Dame Lucy Theis, 55, Sir Richard Arnold, 55, Sir Philip Moor, 57, Sir Nicholas Mostyn, 59, Sir Roderick Newton, 58, and Sir Rabinder Singh, 52.

The tribunal judge, Stuart Williams, observed that the ‘combination of adverse pension changes and successive taxation changes have reduced the overall value of a High Court judge’s remuneration to the point where it has become difficult to recruit new High Court judges’.

Though High Court judges currently earn a salary of around £180,000 a year, counsel for the claimants, Michael Beloff QC of Blackstone Chambers, told the tribunal that barristers can expect an almost 70 per cent drop in income upon becoming a judge, but what they did not expect was government cuts to the ‘compensating benefit’ – their pensions.

Speaking to the House of Lords constitution committee last April, the Lord Chief Justice said the changes to pensions were having an adverse effect on judicial recruitment.

‘The result is that a new High Court judge will have a pension, at the end of the day, that is materially less than a district judge,’ said Lord Thomas of Cwmgiedd. ‘We are paid on the basis that we get a salary and we get a pension. But if you can’t take the pension because the fiscal effects are so large, you will get no compensation for that.’

A government spokesperson said: 'We are disappointed by the court’s findings and will be considering whether to appeal the judgment.' 

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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Pensions Employment Discrimination Courts & Judiciary

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Ministry of Justice Lord Chancellor judicial pensions