The Claimants were circuit judges appointed after 31 March 1995 (the “appointed day” under the Judicial Pensions and Retirement Act 1993 (JUPRA)). They were former fee-paid part-time recorders (appointed as such before 31 March 1995) who on their appointment as circuit judges were compulsorily enrolled in the JUPRA pension scheme and denied access to the (for them) more favourable Judicial Pensions Act 1981 (JPA) pension scheme. Their comparators were circuit judges appointed before 31 March 1995, who under JUPRA were allowed to remain on JPA scheme terms after that date, unlike the Claimants. The Claimants had already been granted a pension on JPA terms in relation to their sittings as recorders, following the O’Brien litigation (O’Brien v Ministry of Justice (Nos. 1 and 2) [2012] ICR 995; [2013] ICR 499; [2017] ICR 1101; [2019] ICR 505). The ET rejected their argument that they had been treated less favourably than their comparators and they appealed.

The EAT dismissed the appeal. The ET had been entitled to decide that the offices of recorder and circuit judge were different, although circuit judges and recorders performed essentially the same activities in their judicial work. The ET was not bound by the reasoning of the Court of Justice of the European Union in O’Brien v Ministry of Justice [2012] ICR 995 to decide that the offices of circuit judge and recorder were one and the same. The ET had not erred in its consideration of the then domestic legislation. The ET had been entitled to decide that the effective and predominant cause of the Claimants being denied access to JPA scheme terms after being appointed as circuit judges, while their comparators (appointed as salaried circuit judges before 31 March 1995) were allowed to remain on JPA scheme terms on the enactment of JUPRA, was not that the Claimants had served part-time as recorders, both before and after 31 March 1995; but rather, that the Claimants were part of a group of judges appointed after 31 March 1995 to a different qualifying judicial office for pension purposes.