A recent decision which ruled that the cutting of judges pension entitlements was discriminatory is to be challenged by the government.
Made by the Employment Tribunal, the decision involved the transitional pension arrangements for 201 judges, relating to age, sex and race discrimination.
A notice of appeal had now been received by the Employment Appeal Tribunal in relation to the case; The Lord Chancellor and Ministry of Justice v Ms V McCloud & Others and Mr N Mostyn & Others.
Counsel for the Lord Chancellor stated, in a grounds of appeal document, that the tribunal had ‘erred’ in its approach to the issues it had determined and had not addressed all of the issues before it. Also, it highlighted the failure of the tribunal to consider and determine the government’s ‘material factor defence’. This will commonly be relied upon by respondents to cases involving equal pay and aims to demonstrate the variation in pay is due to a material factor aside from age or sex.
The document also references a recent decision made by the employment tribunal earlier this year. It involved a claim put forward by the Fire Brigades Union, in an attempt to challenge the transitional provisions of their own pension scheme.
‘The ET found, on substantially the same evidence as was before employment judge [Stuart] Williams in this case, that the transitional provisions were a proportionate means of achieving a legitimate aim and dismissed the claims for age discrimination, equal pay and sex and race discrimination.’
Among the 210 claimants who sought to challenge both the Lord Chancellor and the ministry, were six High Court judges.
Representing them was solicitor Shah Qureshi of the London-based firm, Bindmans. He told the Law Gazette: ‘We are disappointed that the government has decided to appeal what we view as a clear and precise judgment.
‘It would have been better served to address the discriminatory impact of these reforms on younger judges, ethnic minorities and women.’
All judges who were appointed to a salaried role prior to April 1, 2012, could potentially be affected by the issues raised in the case, according to the Lord Chancellor’s counsel. Similarly, those who were in a qualifying fee-paid position from April 1, 2012, and were then moved to a salaried role before April 2015 could also be affected.
Also outlined in the document were the governmental plans to lay regulations before parliament, intended to make the pension provisions of fee-paid judges equal to those of salaried judges.
