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Judges take action against Government over pensions

The Times has reported that more than 900 judges have lodged claims against the Government after the courts awarded them a 'multimillion-pound pensions windfall'

10 July 2013

The claims follows a landmark ruling by the European Court of Justice in Luxembourg last year as well as in the Supreme Court in favour of Dermod O’Brien, QC, a barrister and a fee paid recorder.

Fee paid judges are part time and, unlike their salaried colleagues, are excluded from the judicial pension scheme (though they are entitled to sick pay and other benefits).

Mr O’Brien brought a claim for unlawful discrimination on the ground that he had been less favourably treated than comparable full time / salaried judges, because of his part time status, as when he retired he was not entitled to a pension.

He argued that this was not justified. The EU Part Time Workers Directive (‘PTWD’) outlaws discrimination against part time workers. It was implemented into UK law by the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which only cover workers and employees.

The Supreme Court found in Mr O’Brien’s favour in July 2012. Noting that the MoJ had not thought through the rationale for its differential treatment of part time and full time judges in respect of pensions at the time, it held that while the reasons now put forward, such as the desirability of attracting good candidates for full time positions and distributing resources fairly, could amount to legitimate aims, there was no convincing evidence that the exclusion of part timers from the pension scheme would achieve those aims or that it was proportionate.

Rather, it amounted to “nothing more than a blanket discrimination between two classes of worker.” The Court emphasised that policy decisions “must be consistent with the principles of equal treatment and non-discrimination.”

Chris Benson from the employment team at law firm Leigh Day said: “We are pleased that those judges affected by this discrimination are coming forward - including the large number sitting in tribunals - to challenge their arbitrary exclusion from the pension benefits enjoyed by their full time counterparts who perform exactly the same role.”

“We have been approached by a number of part time judges seeking to bring legal proceedings in respect of their pension entitlements, and we expect many more may do so. We are happy to speak in confidence to anyone who may be affected by the decision.”

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