THE Employment Tribunal on judges\u2019 pensions has been reported as a victory. But who wins, questions Andy Fittes, PFEW General Secretary (pictured).\u00a0Mr Fittes was speaking after an employment tribunal\u00a0 ruled that the Government’s transitional pension arrangements for judges amount to unlawful age discrimination. Andy warned: \u201cThe PFEW believes that the success of this challenge could have unintended consequences to the detriment of public sector workers.\u201d<\/p>\n
He added: \u201cThe ET ruling was on a narrow part of pension legislation, and ruled against a provision that unions across the public sector had fought for.\u201d<\/p>\n
So, what was the case about?<\/strong><\/p>\n The case was solely about transitional protections, and whether these caused direct discrimination by age, and indirect by gender and ethnicity.<\/p>\n What are transitional protections?<\/strong><\/p>\n Transitional protections are a mechanism that was lobbied for by unions \u2013 including PFEW – across the public sector to protect members.<\/p>\n The aim is to ensure those members who cannot remain entirely in \u201cold\u201d schemes, but who have fewer years to serve before retirement, are given special arrangements to help them adjust.\u00a0 The rationale was that these members would already have based future plans on an expectation of a certain pension pot.<\/p>\n There are three types of scheme members:<\/p>\n What does the judgement say?<\/strong><\/p>\n The judgement does not state that either judges only subject to the new scheme (without protection) or in the old scheme have been treated illegally.<\/p>\n It only states that those judges afforded transitional protection have been treated in a way that causes discrimination. In fact, the judge goes further, and states that those with transitional protection have been treated better than they could have been. When considering whether transitional protections were a proportionate means to achieve a legitimate aim, the judge considers whether they may have been \u201cexcessive\u201d and states that an option might have been to simply follow Hutton\u2019s recommendation that accrued rights under the old scheme be protected. The judges\u2019 schemes both protected old rights and offered transitional protection. (As do the police schemes).<\/p>\n The judge states that in conceding to unions that transitional protections were needed, the employer (the Ministry of Justice) failed to seek or providence sufficient evidence of need.<\/p>\n What might be the next steps?<\/strong><\/p>\n There are a number of things that may happen:<\/p>\n There are a number of ways the Ministry might do so:<\/p>\n This would reduce the cost to the public \u2013 possibly by \u00a328,000,000.<\/p>\n Unfortunately if this latter course is taken, some members of the pension scheme lose out. Ultimately it would mean no member of the pensions\u2019 scheme will gain from the claimants\u2019 win, in this ET.<\/p>\n \u00a0What is the PFEW doing?<\/strong><\/p>\n \u201cWe continue to monitor the situation,\u201d said Andy. \u201cWe continue to believe that transitional protections are a good thing, and are deeply disappointed that this case may have consequences that the litigants did not anticipate, and that would cause pension scheme members to lose money.<\/p>\n \u201cWe believe it is important that we act in the best interests of as many of our members as possible. We believe transitional protections offer a better pension for more members.<\/p>\n \u201cThe ET decision is only binding on the judges, not on any other employers –\u00a0 although it may be referred to in other ET cases. If the Ministry for Justice appeals, then that Employment Appeal Tribunal (EAT) decision would have to be followed by other ETs, (albeit it would not be binding if it could be proved the facts of the case differed sufficiently).<\/p>\n \u201cThe judges\u2019 position is different in many respects from the police position.\u00a0 However, it remains to be seen whether \u2013 in fighting the one common element of schemes, the transitional protection \u2013 the litigants have opened the door to poorer pension provision in the public sector.\u201d<\/p>\n <\/p>\n <\/p>\n\n
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