Are the transitional protections afforded to older judges but denied to younger judges under the Judicial Pension Regulations 2015 objectively justified?
No, held the employment tribunal in McCloud & Mostyn (and others) v The Lord Chancellor & The MOJ, because they do not pursue a legitimate aim and have a disproportionate impact upon younger judges.
On 1 April 2015, younger judges were moved into a new pension scheme with less valuable entitlements. Older judges, by contrast, benefited from transitional protections whereby they were wholly or partially insulated from the transfer to the new scheme. The government admitted that this amounted to less favourable treatment of younger judges, and that it had a disproportionate impact upon female and BME judges because of the changing demographic profile of the judiciary. It argued, however, that that treatment was objectively justified.
Employment Judge Williams held that the stated aim of protecting judges closest to retirement essentially amounted to an intention to treat one group more favourably on the grounds of age. Without further explanation, that could not be a legitimate aim. Consistency across public service pension reform was capable of being a legitimate aim. However, the government failed to demonstrate, beyond mere generalisations, how this was achieved through the transitional protections.
Furthermore, it was held that the transitional protections were not a reasonably necessary means of achieving the government’s aims. They went beyond what was necessary to achieve consistency or to protect those closest to retirement and so were not proportionate.
The tribunal held that the result was the same for the claims of indirect sex and race discrimination and the infringement of the principle of equal pay.
Thanks to Chloe Bell, pupil barrister at Outer Temple Chambers, for preparing this case summary.