The Supreme Court has ruled today on Miller v Ministry of Justice that part-time judges are entitled to bring their claims within 3 months of their retirement rather than when their fee-paid judicial posts came to an end.
The judgment handed down today, considers “when time starts to run” for a claim by a part-time judge to a pension under the Part-time Workers Regulations. The Supreme Court unanimously found that the point of unequal treatment occurs at the time the pension falls to be paid.
The impact of the Supreme Court’s judgment is significant. It is anticipated that over 1,000 judges have brought claims or are relying on the moratorium.
This issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (PTWR). Regulation 5 of the PTWR provides that a part-time worker is entitled not to be treated by their employer less favourably than the employer treats a comparable full-time worker, either with regard to the terms of their contract or by being subject to any other detriment.
The Appellants are four judges, each of whom has held one or more appointments as fee-paid-part time judges. Judicial pensions, for those who are appointed on or after 31 March 1995, are provided for under the Judicial Pensions and Retirement Act 1993 (the 1993 Act). The basic concept in that Act is “qualifying judicial office” (s.1). The Appellants, so long as not being paid on a “salaried basis”, were excluded from the definition of “qualifying judicial office”, and therefore were excluded from rights to a pension. 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 EAT and Court of Appeal, as the The Supreme Court issue 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?