Shubha Banerjee and Jonny Buckley discuss new legislation and ongoing litigation in relation to pensions for fee-paid judges. 

The Fee Paid Judicial Pension Scheme (FPJPS)

The FPJPS has now been implemented by the introduction of the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which came into force on 1 April 2017.

In O’Brien v Ministry of Justice [2013] UKSC 6, the Supreme Court held that the denial of pensions to part-time (also known as fee-paid) judges in circumstances where their full-time salaried comparator colleagues were entitled to a pension amounted to less favourable treatment contrary to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (‘PTWR’).

As a result, the government has implemented a scheme as a remedy to provide fee-paid judges with a pension entitlement comparable to their full-time, salaried comparators and introduced the FPJPS. The FPJPS largely mirrors the Judicial Pension Scheme (‘JPS’) for salaried judges on a pro-rata basis so that fee-paid judges are granted pension rights similar to those from which they would have benefited had they been members of the JPS.

The new fee-paid scheme will provide a pension to those judges who are or were fee-paid and who have brought or could bring a successful tribunal claim for less favourable treatment under the PTWR, in relation to their lack of pension entitlement (commonly known as O’Brien claims).

The FPJPS is a welcome development after years of litigating the issue of pension rights for fee-paid judges through the court system and delays in the implementation of the legislation. It represents overdue recognition by the Ministry of Justice (MOJ) that fee-paid judges are entitled to non-discriminatory pension benefits, since the work they do is comparable to that carried out by their full-time salaried colleagues.

Nevertheless, the establishment of the FPJPS does not completely eliminate the discrimination in relation to judicial pensions. Younger fee-paid judges (i.e. those born after 1 April 1957) cannot continue to accrue service in the FPJPS after 31 March 2015 and the years of service that they accrue after this date can only count for pension in the New Judicial Pension Scheme (‘NJPS’), the newer scheme implemented in April 2015 under which they will accrue less valuable benefits. Conversely, older fee-paid judges (i.e. those born before 1 April 1957) can continue to accrue benefits in the FPJPS after 31 March 2015. We are currently acting for a group of salaried judges, born after 1 April 1957, who have been subjected to changes of a similar nature in relation to being required to leave the JPS from 31 March 2015, and have brought claims for direct age discrimination, indirect race and sex discrimination and equal pay. The claims were upheld at first instance, however the MOJ is appealing the ruling.

Miller in the Supreme Court – watch this space

On a related note, a Supreme Court hearing took place in early March in the case of Miller & Others v Ministry of Justice [UKSC 2015/0246 & 0248]. Judgment is awaited in the coming months. The appeal dealt with two main issues. The first was whether service accrued prior to April 2000, when the PTWR were due to come into effect, can be taken into account when calculating pension. For example, if a fee-paid judge began their appointment in 1995, do the years of service between 1995 and 2000 count for the purposes of accruing pension? The second issue for the Supreme Court was to decide when the time limit starts to run for the purposes of lodging a claim for fee-paid pension. The Miller appellants have argued that time should start to run from the point of retirement, when the full-time salaried comparator would receive their pension, rather than from the end of the fee-paid appointment that is the subject of the claim. Should the case be decided in favour of the appellants, the claims of a number of fee-paid judges whose claims are currently ‘out of time’ will be deemed to have been brought in time.