His Honour Timothy Clayson & Ors v Ministry of Justice & Anor

Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, comparability must be assessed when the alleged less favourable treatment occurs. A claimant must then be a part-time worker, although need not remain one when bringing the claim.

The continuing effects of earlier part-time discrimination on pension entitlement do not establish continuing less favourable treatment where that earlier wrong has been fully remedied. A tribunal may find that later less favourable pension treatment results instead from appointment to a different office after a statutory pension change. The effective and predominant cause is a factual question for the tribunal.

The claimants had served as fee-paid part-time recorders from 1992. They later became salaried circuit judges in 2004, 2006 and 2007. Their part-time recorder service was retrospectively made pensionable on JPA-equivalent terms following the O’Brien litigation.

On becoming circuit judges, however, they were compulsorily placed in the less favourable JUPRA pension scheme. Circuit judges appointed before 31 March 1995 could remain in the JPA scheme. The Employment Tribunal dismissed claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The appeal concerned whether recorder and circuit judge were the same office, whether the alleged treatment continued until retirement, and whether its effective and predominant cause was the claimants’ former part-time status.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the claims.

2. The offices of recorder and circuit judge were different offices. Although their holders performed essentially the same judicial activities, that conclusion did not require the tribunal to treat the offices as identical. The tribunal was entitled to take account of their separate statutory creation and their material differences when applying the pension legislation.

3. The claimants’ recorder service had already been fully remedied by pension provision on JPA-equivalent terms. The continuing effects of the earlier denial of pension rights did not mean that the claimants continued to receive less favourable treatment throughout their later service as circuit judges.

4. Regulation 2(4) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 imports a temporal requirement. The claimant and comparator must be engaged in the requisite comparable work when the alleged treatment occurs. Once appointed as circuit judges, the claimants were full-time workers and received the terms available to all circuit judges appointed after 31 March 1995. A circuit judge appointed before that date, whose pension terms were preserved by the earlier statutory regime, was not a valid comparator for that later treatment.

5. The tribunal was entitled to consider the domestic pension legislation and the counterfactual evidence about the scheme that would probably have existed for fee-paid judges. It was not required, through conforming interpretation, to give the claimants access to JPA terms in addition to the remedy already provided for their recorder service.

6. The tribunal also permissibly found that the effective and predominant causes of the differential pension treatment were the claimants’ appointment as circuit judges and the timing of that appointment after 31 March 1995, rather than their earlier part-time work as recorders. That factual conclusion was open to it and disclosed no perversity.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 99.
• Employment Tribunal: Employment Judge Stuart Williams dismissed the representative claims by a reserved decision sent to the parties on 31 August 2023. The decision is unreported in the judgment.