The government introduced new judicial pension arrangements through the Judicial Pensions Regulations 2015, which formed the New Judicial Pension Scheme (NJPS). All serving judges were transferred into the NJPS, which provided less valuable retirement benefits. However, under transitional provisions, serving judges who were within 10 years of normal pension age on 1 April 2012 were permitted to retain within the old scheme until retirement. Tapered protection was available for judges who were between 10 and 14 years from normal pension age on that date. Judges who were more than 14 years from normal retirement age on 1 April 2012 had no protection and went straight into the NJPS.
As a result, a group of 210 judges, including six from the High Court, launched a legal challenge against the age-based transitional provisions, stating they were directly discriminatory on grounds of age and indirectly discriminatory on grounds of sex and race based on the fact that significantly higher numbers of female and black and minority ethnic judges were in the younger group.
The Employment Tribunal decision
The government conceded that the transitional provisions were discriminatory, and therefore the main issue for the employment tribunal was whether the transitional provisions were objectively justified; that is, whether they were a proportionate means of achieving a legitimate aim.
The Tribunal held that the government’s aims of protecting those closest to retirement from the financial effects of pension reform and ensuring consistency of approach across all public sector pension reforms were not legitimate social policy aims. The Tribunal went on to rule that, even if it had accepted the government’s proposed aims, it would have found that the transitional provisions were not proportionate.
The government appealed.
The EAT decision
The Employment Appeal Tribunal (EAT) dismissed the Lord Chancellor’s appeal against the Tribunal’s decision that the transitional provisions were unlawfully discriminatory. The EAT did find that the tribunal had misdirected itself in concluding that no legitimate aims had been shown by failing to take into account the “complex of moral and political judgments” involved.
However, this made no difference to the outcome, as the EAT upheld the tribunal’s finding that the transitional provisions were not proportionate due to the “extremely severe” discriminatory impact on the younger judges (which combined lower pension with the increased tax burden) far outweighing any public benefit in applying the same policy consistency across the public sector.
The tribunal had also been right not to allow the government a “margin of discretion” in terms of its social policy aims and the means of achieving them. It was for the tribunal to decide whether the measures were proportionate, applying an “enhanced level of security”.
The government has been granted permission to appeal to the Court of Appeal.
Lord Chancellor and Secretary of State for Justice and another v McCloud and others, 29 January 2018, case number UKEAT/007/17/LA