Miller & Ors v Ministry of Justice [2019] UKSC 60

Four part-time fee-paid judges claimed pension entitlements under the Part-time Workers Regulations 2000. The Supreme Court held that time for bringing a claim runs from retirement, not from the end of each fee-paid appointment, allowing their claims to proceed.

Facts

The appellants were four judges who had held one or more fee-paid part-time judicial appointments, in some cases combined with full-time salaried judicial posts. Their careers illustrated various patterns: moving between part-time and full-time roles in the same jurisdiction (Mr Haworth and Mr Sprack), or holding portfolios of part-time appointments changing over time (Mr Fox and Mr Wain). Under the Judicial Pensions and Retirement Act 1993, pensions are payable to those retiring from ‘qualifying judicial office’, defined as holding a salaried office listed in Schedule 1. Fee-paid part-time judges were excluded. Following the CJEU and Supreme Court rulings in O’Brien v Ministry of Justice, regulation 17 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) was disapplied to permit pension claims by fee-paid judges.

Each appellant lodged a claim with the Employment Tribunal more than three months after the end of a part-time appointment but within three months of retirement. Employment Judge Macmillan held the claims out of time, reasoning that time under regulation 8 PTWR ran from the end of each fee-paid appointment. The Court of Appeal dismissed the appeals on the assumption that they were governed by the then-prevailing view in O’Brien.

Issues

The central issue was when time starts to run under regulation 8 of the PTWR for a claim by a part-time judge seeking access to the judicial pension scheme: does the three-month limitation period begin at the end of each fee-paid appointment, or at the date of retirement when the pension falls due?

Arguments

For the Ministry of Justice

Mr Cavanagh QC argued that following the CJEU’s decision in O’Brien 2, pension rights are ‘definitively acquired’ at the end of each corresponding period of service. Pensions are deferred pay (Parry v Cleaver), with entitlement accruing at the time of service. Relying on Barclays Bank plc v Kapur and Sougrin v Haringey Health Authority, he submitted that the less favourable treatment occurred during service, not when consequences were felt. He warned that treating retirement as the relevant date would produce absurd results, delaying any remedy until pension age and requiring many pending claims to be struck out.

For the appellants

Mr Allen QC argued that regulation 8 asks when the less favourable treatment finally occurred. The detriment crystallises at retirement when, had they worked full-time, they would have been entitled to a pension. Until then, the comparator’s entitlement was prospective, contingent and inchoate. He relied on paragraph 35 of O’Brien 2, noting that a worker can only ‘effectively avail himself’ of pension rights subsequently, and on Lord Kerr’s statement in Walker that ‘the point of unequal treatment occurs at the time that the pension falls to be paid’. The 1993 Act’s aggregated approach to ‘qualifying judicial office’ meant focus on individual appointments was misleading.

Judgment

Lord Carnwath, with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agreed, allowed the appeals. The issue was one of domestic law turning on the construction of regulation 8 PTWR. The prior assumption that the Miller appeals would stand or fall with O’Brien had impeded clear analysis of the domestic law issues.

The regulations had to be construed in a highly artificial context: judicial officers are not employed under contracts (following Gilham v Ministry of Justice), and the pension scheme is based not on individual appointments but on aggregated ‘qualifying judicial office’ comprising multiple potential offices under Schedule 1 of the 1993 Act. Employment Judge Macmillan’s narrower approach, treating time as running from the end of each fee-paid appointment, did not fit with the aggregated statutory scheme.

Lord Griffiths’ speech in Kapur was not determinative because the House was not required to consider whether there was unfavourable treatment at the point the pension was taken. The Ministry’s ‘absurd consequences’ argument failed because regulation 5 permits complaints about both contract terms and ‘any other detriment’: a part-time judge could complain during service about the lack of pension provision in the terms of office, and separately at retirement about the failure to make a pension available. The former does not exclude the latter.

Lord Kerr’s statement in Walker that ‘the point of unequal treatment occurs at the time that the pension falls to be paid’ was helpful and consistent with Lord Reed’s observation in O’Brien that it is unlawful to discriminate against part-time workers when a retirement pension falls due for payment. This accorded with common sense: although complaints could have been made during service, this did not detract from the less favourable treatment suffered at retirement.

Implications

The decision confirms that, for the purposes of regulation 8 PTWR, time for bringing a claim by a fee-paid judge denied access to the judicial pension scheme runs from retirement, when the pension falls due for payment. The court recognised that a complaint may be made at more than one point: during service in relation to contractual terms, and at retirement in relation to non-payment of pension.

The judgment is particularly significant for part-time judges whose careers combined fee-paid and salaried appointments, because the 1993 Act’s aggregated approach to ‘qualifying judicial office’ means that pension entitlement cannot sensibly be assessed by reference to the ending of individual appointments. The decision acknowledges the artificial context of applying employment-style regulations to judicial office-holders who work without contracts.

More broadly, the ruling distinguishes between the accrual of pension entitlement (which occurs during service) and the occurrence of the operative detriment for limitation purposes (which may occur at retirement). This clarifies a point left open in Kapur and aligns with the approach in Walker. The practical effect is to prevent otherwise meritorious pension discrimination claims being defeated by limitation where claimants only suffer actual pension loss at retirement, many years after ceasing the relevant part-time service.

Verdict: The appeals were allowed. The Supreme Court held that time under regulation 8 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 did not run only from the end of each fee-paid appointment; the less favourable treatment occurred at the point of retirement when the pension fell due, and declarations were made accordingly.

Source: Miller & Ors v Ministry of Justice [2019] UKSC 60