Miller and others v Ministry of Justice

Under regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, denial of a judicial pension can constitute less favourable treatment when the pension falls due on retirement. A part-time judge may complain during service that the terms of office make no provision for a future pension and may also complain on retirement that no pension has been made available. The earlier detriment does not exclude the later one.

Judicial pension entitlement is based on aggregate service in qualifying judicial office. It is therefore inappropriate to make limitation depend upon the ending of each individual fee-paid appointment.

Four judges had held combinations of fee-paid part-time and salaried full-time judicial appointments. Each presented a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 more than three months after a relevant part-time appointment ended, but within three months of retirement.

The Employment Tribunal held that time ran separately from the ending of each fee-paid appointment. The Court of Appeal dismissed the appeals in [2015] EWCA Civ 1368, treating its decision in O’Brien v Ministry of Justice [2015] EWCA Civ 1000 as determinative.

The question before the Supreme Court was when less favourable treatment concerning denial of access to a judicial pension occurred for the purposes of regulation 8: at the end of each period of fee-paid service, or also when the pension fell due on retirement.

1. The appeals were allowed unanimously. Lord Carnwath, with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agreed, held that the appellants suffered, or would suffer, less favourable treatment when their pensions fell due on retirement. Their claims presented within three months of retirement were therefore not necessarily out of time merely because individual fee-paid appointments had ended earlier.

2. The issue was one of domestic law concerning the construction and application of regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The former assumption that the question depended upon when pension rights became definitively acquired under EU law had impeded the correct analysis.

3. The judicial pension scheme under the Judicial Pensions and Retirement Act 1993 focuses on aggregate service in “qualifying judicial office”. That composite concept may embrace several appointments. The ending of each individual part-time appointment should not govern pension entitlement or limitation under the Regulations. The flexibility of a judicial career involving different fee-paid and salaried offices supplies no reason for treating those offices separately for pension purposes.

4. A part-time judge may experience two relevant forms of less favourable treatment. During service, the judge may complain that the terms of office contain no provision for a future pension. On retirement, the judge may complain of the failure to make a pension available. Regulation 5 encompasses both less favourable contractual terms and other detriment caused by an act or deliberate failure to act. The first complaint does not exclude the second.

5. Barclays Bank plc v Kapur [1991] 2 AC 355 established that unfavourable pension terms could constitute a continuing act throughout employment. It did not determine whether further unfavourable treatment occurred when the pension became payable. By contrast, the reasoning in Innospec Ltd v Walker [2017] UKSC 47, that unequal treatment occurs when the pension falls to be paid, directly assisted the appellants.

6. The Court made declarations reflecting those conclusions.

1. United Kingdom Supreme Court: Allowed the appeals unanimously and displaced the Court of Appeal’s limitation analysis: [2019] UKSC 60.
2. Court of Appeal: Dismissed the appellants’ appeals without substantive analysis, treating O’Brien v Ministry of Justice [2015] EWCA Civ 1000 as determinative: [2015] EWCA Civ 1368.
3. Employment Appeal Tribunal: The issues received no substantive consideration because they were treated as governed by the related O’Brien litigation.
4. Employment Tribunal: Held that the three-month period ran from the ending of each fee-paid appointment and declined to extend time on just and equitable grounds.