The government is to challenge the employment tribunal’s decision that transitional pension arrangements for 210 judges amount to unlawful age discrimination, the Gazette has learned.

The Employment Appeal Tribunal has received a notice of appeal in relation to The Lord Chancellor and Ministry of Justice v Ms V McCloud & Others and Mr N Mostyn & Others.

In a grounds of appeal document, counsel for the lord chancellor state that the tribunal ‘erred’ in its approach to the issues which it determined, and did not address all of the issues before it. In particular, the tribunal failed to consider and determine the government’s ‘material factor defence’.

The document refers to an employment tribunal judgment given this month in relation to a claim made by members of the Fire Brigades Union, who sought to challenge transitional provisions of their pension scheme.

The document states: ‘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.’

Six High Court judges, including Sir Nicolas Mostyn and Sir Rabinder Singh, were among 210 claimants who challenged the lord chancellor and the ministry over the transitional pension provisions.

Solicitor Shah Qureshi, of London firm Bindmans, representing the High Court judges, told the 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.

Addressing the question of who can properly determine the appeal, counsel for the lord chancellor say the issues in the case potentially affect all judges who were appointed to a salaried position before 1 April 2012, or who sat in an eligible fee-paid post for the purposes of the fee-paid judicial pension scheme from 1 April 2012 and were appointed to a salaried position before 1 April 2015.

The document states that the government will shortly lay before parliament regulations intended to equalise the pension provision of fee-paid judges with that of salaried judges.

Those potentially affected include: all judges who had retired from a salaried position before 1 April 2015 and who now sit as a fee-paid judge in retirement; all judges who were members of previous judicial pension schemes who reached the maximum service cap of 20 years prior to 1 April 2015 and who now sit as fee-paid judges; and all those who sat in an eligible fee-paid post for the purposes of the fee-paid judicial pension scheme from 1 April 2012.

This article was first published on The Law Society Gazette.