Ministry of Justice pickle over pensions is a lesson to all employers

Nothing sparks more debate than when the Ministry of Justice falls foul of the law over which it presides.

In the recent case of McCloud & Mostyn (and others) v The Lord Chancellor & the MOJ, it was found that the imposition of a transitional scheme softening the blow of pension reform for older judges was discriminatory as the same arrangements had not been offered to younger members of the judiciary.

It was admitted by the MoJ that this was discriminatory, both on younger judges and female and ethnic minority judges. The reason being that statistically they would have joined the judiciary more recently and, therefore, were more likely to be disadvantaged.

However, the MoJ argued the statutory defence that, in treating more senior members favourably, its actions could be objectively justified as “a proportionate means of achieving a legitimate aim.”

What legitimate aim?

Well, that’s where it all fell down – to treat older members of the judiciary more favourably it seems. The Employment Tribunal found that this was an inadequate explanation, leading the defence to fail.

So, why is this of relevance to you as an employer?

Basically, it is an example of another type of law…the law of unforeseen consequences. The MoJ was attempting to be accommodating to judges facing retirement sooner. Its motives were honourable, but in doing so it has scored a major home goal.

With the benefit of hindsight, the smug observer can see that the legal challenge was all so foreseeable.

As lawyers, often we deal with scenarios that have been rushed through by often well-intentioned employers, leading to years of litigation to follow. The solution is simple – take your time, check your facts and if you are unsure, seek a professional opinion. It is also worth querying whether you are over-complicating a situation by trying to be just too nice.

For more information on this or any other employment issue, contact our Employment team.

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