Presided over by Lady Hale sitting with Lord Kerr, Lord Reed, Lord Carnwath and Lord Hughes, the Supreme Court has unanimously allowed an appeal by four judges, each of whom has held one or more appointments as fee paid part-time judges - in some cases having moved between part-time and full-time salaried appointments.
In the case of Miller v Ministry of Justice, the Supreme Court ruled that part-time judges are entitled to bring their claims within three months of their retirement - rather than when their fee-paid judicial posts come to an end.
The issue in this appeal was when time begins for a claim to be made by a part-time judge to a pension under the Part-time Workers’ 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 less favourably by their employer than the employer treats a comparable full-time worker. This can be either with regard to the terms of their contract - or by being subject to any other detriment.
The Supreme Court found that the point of unequal treatment occurs at the time the pension fails to be paid. The significance of this ruling is that it could affect over 1,000 judges who have brought claims or are relying on the moratorium.
Judicial pensions - for those appointed on or after 31 March 1995 - are provided for under the Judicial Pensions and Retirement Act 1993. The basic concept in that Act is “qualifying judicial office” and the judges, as long as they were not being paid on a salaried basis, were not included in the definition of qualifying judicial office - thereby being excluded from rights to a pension. The four judges - each of whom has held one or more appointments as fee-paid-part time judges - claimed that they had been the subject of less favourable treatment in the provision to them of a judicial pension.
The four judges each lodged a claim with the Employment Tribunal more than three months after the end of a part-time appointment. This meant that they were out of time if the relevant time for lodging a claim was within three months after retirement - but they were within time if the relevant end date is the date of retirement.
Originally, it was 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. However, the Supreme Court issue has been treated as subject to the appeal in Ministry of Justice v O’Brien and is now understood as one of domestic law, and has been argued fully.
