The Ministry of Justice v Edge & Anor (Part Time Workers)

A finding that a part-time worker has suffered unlawful less favourable treatment does not itself determine the particular remedy. Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the tribunal must separately determine the just and equitable remedy for the loss caused by the breach.

A discriminatory reason which is more than trivial establishes liability even where a concurrent non-discriminatory reason also operated. The concurrent reason may nevertheless be relevant to remedy. A liability concession does not prevent an employer from advancing that distinct remedial issue, and neither issue estoppel nor the rule in Henderson v Henderson bars it where it was unnecessary to decide it at the liability stage.

The claimants were former part-time Valuer Chairs in the Residential Property Tribunal Service. They alleged less favourable treatment, principally concerning pension provision, under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

In a March 2014 decision, the Employment Tribunal held that their work was broadly similar to that of salaried Tax Chamber judges. Following the Ministry’s concession, it held that their claims concerning exclusion from the Judicial Pension Scheme succeeded. The Ministry later sought to argue at the remedy hearing that a pension equivalent to that scheme was not the just and equitable remedy.

The Employment Tribunal refused that course, holding that the issue had already been determined and was a liability issue. The Ministry appealed. The central question was whether the proposed argument had been decided at the liability hearing or remained a question of remedy.

1. Appeal allowed. The Employment Judge erred in treating the March 2014 liability decision as having determined the remedy. The Ministry remained entitled to argue at the remedy hearing that the appropriate pension remedy was not membership of, or a pension equivalent to, the Judicial Pension Scheme.

2. The earlier decision established only that the claimants had been treated less favourably, contrary to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, by their exclusion from pension provision or the scheme. It did not establish an entitlement to a specified pension. The success of a discrimination claim leads to such compensation or declaration as is just and equitable; it does not as a matter of law entail access to a particular pension scheme.

3. Liability and remedy had been wrongly elided. The Ministry continued to concede that part-time status was a legally significant cause of the treatment. A discriminatory reason which is more than trivial suffices for liability, even if a concurrent non-discriminatory reason also exists. That concurrent reason cannot defeat liability, but may be relevant to the remedy and the loss properly to be compensated.

4. The concurrent reason did not have to be raised at the liability hearing. It was unnecessary to determine it once liability had been conceded. Accordingly, no issue had been decided so as to create an estoppel, and the rule in Henderson v Henderson was not engaged.

5. O’Brien v Ministry of Justice [2013] UKSC 6 did not require every part-time judge to receive the same pension as a chosen full-time comparator. Its consequence depended on the facts and the statutory remedy exercise.

6. No remittal was necessary. The only correct result was that the Ministry should not have been shut out from advancing the remedial argument.

• Employment Appeal Tribunal: allowed the Ministry’s appeal and held that its proposed pension argument remained open at the remedy stage.
• Employment Tribunal, London (Central): in a judgment sent on 23 December 2014, refused the Ministry permission to raise the argument, holding that it had already been determined at the March 2014 liability hearing.