Engel v Ministry of Justice

Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, compensation must address loss attributable to the part-time worker’s discriminatory exclusion from the relevant benefit. The pro rata principle applies to the pension scheme which represents that loss. It does not require compensation to be calculated by reference to a more favourable scheme available to a comparator in a historically separate jurisdiction where the difference did not arise from part-time status.

An Employment Tribunal determining compensation under Regulation 8 has no jurisdiction to determine a separate substantive entitlement to judicial pension scheme membership under the Judicial Pensions (Fee-Paid Judges) Regulations 2017. Any such entitlement does not itself determine the just and equitable compensation for the statutory infringement.

The claimant was a retired part-time legally qualified Chair in the Residential Property Tribunal Service. He had established less favourable treatment under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 because he had not received a pension.

The Employment Tribunal held that the appropriate remedy was calculated by reference to the pension arrangements for Vice-Presidents in the same jurisdiction. It declared that the claimant was entitled to a 50% JUPRA-equivalent pension for service from 7 April 2000 to 30 June 2013, and a 100% equivalent pension thereafter until retirement. The claimant appealed, contending that compensation should instead reflect the pension of his full-time Tax Chamber comparator and that the Tribunal should determine his rights under the Judicial Pensions (Fee-Paid Judges) Regulations 2017.

1. Appeals dismissed. The Employment Judge made no error in calculating pension loss by reference to the pension which the claimant would have received had he not been excluded as a part-time fee-paid judge in the Residential Property Tribunal Service.

2. Regulation 8(9) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 requires compensation that is just and equitable, having regard to the infringement and loss attributable to it. The relevant counterfactual was not that the claimant had held the post of his full-time Tax Chamber comparator. It was that pension provision had been made for him as a fee-paid judge in the Residential Property Tribunal Service.

3. The different pension arrangements for Tax judges and Residential Property Tribunal Service judges resulted from the historically separate development of their jurisdictions, rather than part-time status. The Vice-Presidents were not comparators for establishing liability under Regulation 5. Nevertheless, their pension arrangements were relevant evidence of the pension the claimant would have received absent the discriminatory exclusion.

4. The Employment Judge did apply the pro rata principle. It was applied to the Residential Property Tribunal Service pension scheme selected as the basis of the claimant’s loss. Regulation 8(9) did not require pro rating a different, more generous JUPRA pension scheme applicable to Tax judges.

5. The Tribunal’s jurisdiction under Regulation 8 was confined to compensation for the part-time working infringement. It could not determine whether the claimant had a separate entitlement to membership of the judicial pension scheme under the Judicial Pensions (Fee-Paid Judges) Regulations 2017. That possible entitlement neither enlarged the Tribunal’s jurisdiction nor required compensation to be assessed on that basis.

6. Compensation could properly be based on the claimant’s actual Residential Property Tribunal Service pay. His claim to pay at the Tax judge rate had already failed, so it was not unjust to exclude that differential from the pension calculation.

• Employment Appeal Tribunal: Appeals dismissed: [2019] UKEAT 0279_18_1306.
• Employment Tribunal: Employment Judge Macmillan held that pension loss should be assessed by the respondents’ proposed methodology in a decision sent on 1 February 2018. In a declaration sent on 19 July 2018, the Tribunal declared entitlement to a 50% JUPRA-equivalent pension before 1 July 2013 and a 100% equivalent pension thereafter.