Supreme Court rules in favour of part-time, fee-paid judges in their battle for a right to a pension – Miller and others v Ministry of Justice

Background

The Judicial Pension Scheme (“the Scheme”), which at the relevant time was governed by the Judicial Pensions and Retirement Act 1993, stated that a pension was payable to any person who retired from a “qualifying judicial office” once they had reached 65 years of age and completed at least 5 years of service. It was accepted that full time judges and salaried part-time judges were treated as holding a qualifying judicial office, whereas fee-paid, part-time judges were not.

The four appellants in Miller and others v Ministry of Justice [2019] UKSC 60 each held one or more fee-paid, part-time judicial appointments and so therefore did not qualify for a pension under the Scheme.

The appellants raised a claim which argued that their exclusion from pension provision under the Scheme amounted to less favourable treatment in comparison with full-time judges and salaried part-time judges, which was contrary to Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). Regulation 8(2), however, states that complaints must be lodged within 3 months of the less favourable treatment or detriment to which the complaint relates. The appellants lodged their claims within 3 months of retirement but more than 3 months after the end of a part-time, fee-paid judicial appointment.

Prior to the case reaching the Supreme Court, the Employment Tribunal decided that the appellants’ claims were time-barred as the 3 month period started from the end of each part-time, fee-paid appointment as opposed to the date of retirement. The Court of Appeal dismissed the appellants’ claims.

Decision

The Supreme Court Judges were unanimous in their decision and ruled in favour of the appellants.

They found that Regulation 5 made clear the unfavourable treatment might relate to the terms of the contract or to “any other detriment” resulting from an act or failure to act by the employer. In the context of judicial pensions, a part-time judge might properly complain, during their period of service, that their terms of office did not include provision for a future pension and, at the point of retirement, that there has been a failure to make a pension available. The former did not exclude the latter.

The PTW Regulations 2000 had to be construed in a “highly artificial context” due to the need to conform to the requirements of European law and the special characteristics of judicial appointments and judicial pensions under domestic law.

Reference was made to Lord Kerr’s statement in Walker v Innospec Ltd [2017] UKSC 47, paragraph 56: “the point of unequal treatment occurs at the time that the pension falls to be paid”; and Lord Reed’s statement in O’Brien v Ministry of Justice [2017] UKSC 47, paragraph 19: “it is unlawful to discriminate against part-time workers when a retirement pension falls due for payment”.

Comment

This decision brings much needed clarity to the question as to when the relevant time of a detriment in pensions discrimination cases, such as this, is. The Supreme Court said it is when the pension is due for payment, not at a point when the appointment particular ends.

Whilst this case is specific in nature about pension arrangements and part-time discrimination, it could potentially have a wider application in relation to discrimination and pension detriment. It is possible that the arguments presented in this case and the Supreme Court’s reasoning will be relied upon in similar cases about time barred complaints of less favourable treatment relating to pension. It is therefore an important decision to be aware of.

This article was co-written by Kirsty Fryer, Trainee Solicitor.

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