Four fee-paid part-time judges presented pension claims more than three months after particular appointments ended, but within three months of retirement. The Supreme Court held that the less favourable treatment of failing to pay a pension occurred at retirement, so the claims were not out of time under the Part-time Workers Regulations.
The claims and the time limit
The appellants were four judges who had held fee-paid part-time appointments, in some cases moving between part-time and salaried posts or holding a changing portfolio of appointments. Each lodged an Employment Tribunal claim more than three months after a part-time appointment ended. The claims would be in time only if the three-month period in regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 ran from retirement.
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Regulation 8 bars a complaint presented after three months from the less favourable treatment or detriment, or from the last in a series. On 2 January 2014 Employment Judge Macmillan held that time ran from the end of each fee-paid appointment, whether the judge then moved into a salaried post or retained other fee-paid work, so the claims were out of time. His refusal to extend time was no longer in issue. The Court of Appeal dismissed the appeals without separate analysis, treating them as governed by its view in related litigation that pension rights were acquired during service.
Why time ran from retirement
Lord Carnwath, with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agreed, held that the issue was the domestic construction of regulation 8: when the less favourable treatment occurred. The Regulations had to be applied in an artificial setting. Judicial office is not held under a contract, and the Judicial Pensions and Retirement Act 1993 provides a pension by reference to aggregated service in qualifying judicial office, which may comprise more than one listed office. Treating each fee-paid appointment as a separate end-point therefore fitted poorly with the required comparison.
A fee-paid judge could complain during service that the terms of office included no future pension. That did not exclude a further complaint, at retirement, that no pension was then made available. The failure to pay the pension occurred when it fell due. This was consistent with the statement in related pension litigation that the point of unequal treatment occurs when the pension falls to be paid, and with the sense of the complaint actually made. Reasoning about when pension rights were acquired during service did not fix the domestic time limit at the end of each appointment.
For the earlier dispute about which years of service counted towards a judicial pension, see O’Brien v Ministry of Justice [2017] UKSC 46.
Verdict: The Court unanimously allowed the judges’ appeals and directed declarations in their favour. Their claims could be brought within three months of retirement, when the pension fell due.
Source: Miller and others v Ministry of Justice [2019] UKSC 60
