Four part time judges have won an appeal to the UK Supreme Court over whether their complaints of lack of equal treatment over pension provision, made when they retired, had been brought timorously.
Five Justices unanimously ruled that in complex "portfolio" cases where a judge has held a number of fee paid offices, or a mix of salaried and fee paid offices, that a part time judge might properly complain both 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 had been a failure at that point to make a pension available, and the former did not exclude the latter.
The appellants, so long as not being paid on a “salaried basis”, were excluded from the definition of “qualifying judicial office” in the Judicial Pensions and Retirement Act 1993, and therefore were excluded from rights to a 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 was the relevant date, but within time, if the relevant date was the date of retirement.
The employment judge held that the three months started to run from the end of any part time appointment, and that the claims were accordingly out of time. Before the Upper Tribunal and Court of Appeal the issue was treated as in substance turning on decisions, domestic and European, in O’Brien v Ministry of Justice (2017), which the Court of Appeal treated as ruling that pension rights required to be defined by reference to the law applicable during the period of service.
Lord Carnwath, however, with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agreed, said it was now common ground that the issue in the appeal was one of domestic law, turning on the construction and application of reg 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which contained the three month time limit.
"It must be borne in mind", he observed, "that that the regulations have to be construed in a highly artificial context. That results not only from the need to conform to the requirements of European law, but also from the special characteristics of judicial appointments and judicial pensions under domestic law." Judicial officers were not employed under contracts; and the judicial pension scheme was not based on individual appointments but on "qualifying judicial office", which might include a number of different appointments.
The narrow approach taken by the employment judge did not "fit well with the aggregate approach required by the 1993 Act. The varied combinations of fee-paid or salaried offices undertaken by different individuals were a desirable feature of a flexible judicial system, but there is no reason why they should govern the entitlement to pension, under the [regulations] any more than under the 1993 Act itself".
Referring to previous judicial statements that the point of unequal treatment occurred at the time the pension fell to be paid, and that it was unlawful to discriminate against part time workers when a retirement pension fell due for payment, Lord Carnwath concluded: "In my view, that also accords with the common sense of the matter. It may be that the appellants could have complained of less favourable treatment, as compared to their full time colleagues, by reference to the lack of any equivalent provision for a pension in their terms of office. But that does not detract in any way from the less favourable treatment they undoubtedly suffered, or would suffer, at the point of retirement."