Employment tribunal rejects circuit judges’ pension claims

Tribunal: Judges were not part-time workers at key time

An employment tribunal has dismissed a test case brought by three retired circuit judges who argued that they were treated unfairly by having to join a less generous judicial pension scheme.

The judges, representative of a larger group, claimed they were treated less favourably because they had worked as part-time recorders before becoming circuit judges.

The tribunal heard that Timothy Clayton became a recorder in 1996 before becoming a circuit judge in 2004 and sitting at Bolton Crown Court. Andrew Woolman was appointed a recorder in 1997 and a circuit judge in 2006, sitting at Preston Crown Court. David Griffith-Jones was appointed recorder in 1997 and circuit judge in 2007, sitting at Maidstone Crown Court.

When a new judicial pension scheme was introduced by the Judicial Pensions and Retirement Act 1993 (JUPRA) with effect from 31 March 1995, circuit judges were given a right to elect to join that new scheme or to remain in their existing scheme under the Judicial Pensions Act 1981 (JPA).

The claimants said the terms of the JUPRA scheme were less favourable than those of the earlier pension.

Although the JPA only applied to salaried judges, they contended that their pension entitlement should have been equivalent to what a circuit judge under the JPA scheme would have had, arguing that there was no material difference between the offices of recorder and circuit judge except for the former being part-time and the latter full-time.

Instead, they said, they were treated less favourably than their comparators on the basis of having been part-time workers.

JUPRA applied to someone who ceased to hold a ‘qualifying judicial office’ and was appointed to another one after 31 March 1995, meaning a key question was whether, on appointment to the office of circuit judge, a recorder ceased to hold that office and was appointed to ‘some other qualifying judicial office’.

Employment judge SJ Williams said the move from recorder to circuit judge could not be described as “no more than a part-timer going full-time”.

The judge went on: “When they applied to be circuit judges, the claimants were doing much more than applying to change their working hours; they were applying for a wholly different professional life.”

The evidence of all three “amply demonstrates the many differences” and “if it were simply a question of a part-timer going full-time, one might wonder how, on a competency-based exercise, each could have failed at the first attempt” to become a circuit judge.

Judge Williams said that whether they were applying to continue in their existing office, or to be appointed to ‘some other’ office, the answer was “in my judgment obvious”.

When they were appointed circuit judges, they were appointed to ‘some other qualifying judicial office’ under JUPRA.

The judge said that, in the 1990s and early 2000s, there was no pension scheme for fee-paid judicial office-holders, a situation changed by the judgments of the Supreme Court and European Court of Justice in the O’Brien litigation.

The claimants acknowledged that, as a result, they “now enjoy the benefit of JPA-equivalent pension terms” in respect of their part-time work.

“To that extent, the pre-existing discrimination against the claimants as part-time judicial office-holders has been retrospectively remedied.”

Judge Williams said that “when the claimants suffered the less favourable treatment complained of, they were full-time workers” and were therefore not entitled to complain of that treatment under part-time worker legislation.

It followed that the “effective and predominant cause” of the claimants’ less favourable treatment was their appointment as circuit judges after 30 March 1995, and not their part-time status, whether before or after that date.

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