Miller and others v. Ministry of Justice - (16 Dec 2019)

Judicial pension scheme is not based upon individual appointments only; it includes a number of different appointments

Service

Issue in present appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive, as applied by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations, 2000 (PTWR).

The Appellants are four judges, each of whom has held one or more appointments as fee-paid part-time judges, in some cases moving between such part-time and full-time salaried appointments. The Appellants brought claims on the basis that, they had been the subject of less favourable treatment in the provision to them of a judicial pension. Each lodged a claim with the Employment Tribunal more than three months after the end of a part-time appointment, and therefore out of time if that is the relevant date for regulation 8 of the PTWR, but within time if the relevant date is the date of retirement.

At first instance, EJ Macmillan held that, the three months started to run from the end of any part-time appointment, and thereby held that the claims were brought out of time. There has been no substantive judicial consideration of this issue before the Upper Tribunal and Court of Appeal, as the Supreme Court of the United Kingdom has been treated as subject to the appeal in Ministry of Justice v O’Brien. However, before the Supreme Court the issue is now understood as one of domestic law, and has been argued fully. The determinative question is: when did the less favourable treatment occur.

As judicial officers are not employed under a contract of employment, the PTWR must be construed in an artificial context. References to the “terms of a contract” can at best be applied by analogy. In determining this case, it must be borne in mind that, the judicial pension scheme is not based upon individual appointments. Instead, regard must be had to the composite term “qualifying judicial office”, which may include a number of different appointments.

Special feature of the scheme must be taken into account when making the comparison between part-time and full-time judges called for by the PTWR, as it may be misleading or unfair to direct attention to the nature and timing of individual part-time appointments. There is no reason why entitlement to pension should be governed by the varied combinations of fee-paid or salaried offices undertaken by different individual judges.

Regulation 5 of the PTWR makes clear that, unfavourable treatment may relate to the terms of a contract or “any other detriment” resulting from an act or failure to act by the employer. In the context of judicial pensions, a part-time judge may properly complain: (1) during their period of service that their terms of office do not include proper provision for a future pension; and, (2) at the point of retirement, that there has been a failure to make a proper pension available. The former does not exclude the latter. This accords with case law, which indicates that, the point of unequal treatment occurs at the time the pension falls to be paid, and accords with the common sense of the matter.

Tags : PENSION UNEQUAL TREATMENT VALIDITY