Andrew Allen KC and Alexander Line successfully resist appeal in the EAT brought by Circuit Judges in relation to their pension rights

In Clayson and others v Ministry of Justice and others [2024] EAT 99, the Employment Appeal Tribunal (Mr Justice Kerr) dismissed an appeal brought by Claimant Circuit Judges in relation to their pension rights. Andrew Allen KC and Alexander Line successfully represented the Respondents.

The three test Claimants (who formed part of a larger cohort) were each former Recorders who were appointed to the office of Circuit Judge on or after 31st March 1995. That date was important, as it was the date on which a new judicial pension scheme under the Judicial Pensions and Retirement Act 1993 (‘JUPRA’) came into effect. They contended that the terms of this scheme were less favourable than the scheme under the Judicial Pensions Act 1981 (‘JPA’), and their inability to elect which pension scheme to enter constituted discrimination under the Part-time Worker (Prevention of Less Favourable Treatment) Regulations 2000. Although the JPA scheme only applied to salaried judges, they argued that (applying O’Brien retrospectively) their Recorder sittings and subsequent Circuit Judge sittings should be compensated, in terms of pension entitlement, equivalently to what a Circuit Judge under the 1981 scheme would have enjoyed. Central to their arguments was that there was no material difference between the offices of Recorder and Circuit Judge, save that one was full-time and the other part-time.

The Employment Tribunal dismissed their claims in July 2023 (Andrew and Alex represented the Respondents successfully at this stage): Judgment can be read here.

The Claimants appealed this decision. In dismissing the appeal, the EAT found that the Tribunal had not erred in law in its approach to the comparator issue; had not erred that the Claimants were not part-time workers when the less favourable treatment arose; and had applied the correct causation test. The EAT emphasised that the offices of Recorder and Circuit Judge were not the same. It was held that the comparison with a full-time worker must be made at the time that the alleged less favourable treatment had occurred. The claims were made in the context of the O’Brien remedy, which had by the time of the claims already provided a complete remedy to the Claimants for their Recorder sittings. At the time the Claimants entered the JUPRA scheme, they ceased to be Recorders and were Circuit Judges – and full-time workers – therefore they could not make a valid comparison under the PTWR. The EAT also accepted that the appeal against the Tribunal’s causation finding was a veiled perversity attack, and that the Tribunal had been entitled to conclude that the effective and predominant cause for the treatment was the date of the Claimants’ appointment as Circuit Judges.  

The EAT’s decision can be found here.

This decision follows Andrew and Alex’s successful representation of the same Respondents in the EAT in another strand of Circuit Judge pay and pension litigation, know as the Dodds litigation, last year. Judgment can be read here.

Find out more

Andrew Allen KC appears in employment, discrimination and other civil matters in the ET, EAT, County Court, High Court and Court of Appeal as well as in internal and professional disciplinary and regulatory disputes. He has appeared in the employment tribunals in England, Wales, Northern Ireland and Scotland. Andrew has undertaken a number of internal investigations including in a large international corporation and a charity. Andrew also acts as a mediator. His clients include private individuals and national and international corporations, central and local government, Transport for London, Police Forces, NHS Trusts, and Housing Associations.

Alexander Line specialises in the areas of employment and education law. He has extensive employment and discrimination law experience, having practised in these areas throughout his career at the Bar. He has a broad range of experience in education law matters, with particular expertise in the law relating to special educational needs. He is also well placed to assist with public law cases affecting these and associated areas. Alex has a busy advisory and advocacy practice, regularly appearing in the Employment Tribunal, County Court and the First-Tier Tribunal. He also has High Court, Employment Appeal Tribunal, Upper Tribunal, and Court of Appeal experience.

To find out more about Andrew or Alex, contact Nick Levett on +44 (0)20 7427 4908 or Mark Gardner on +44 (0)20 7427 4909.

News 28 Jun, 2024