Miller and Others v Ministry of Justice

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLady Hale,Lady Arden,Lord Carnwath,Lord Reed,Lord Wilson
Judgment Date16 Dec 2019
Neutral Citation[2019] UKSC 60

[2019] UKSC 60

Supreme Court

Michaelmas Term

On appeal from: [2015] EWCA Civ 1368

before

Lady Hale, President

Lord Reed, Deputy President

Lord Wilson

Lord Carnwath

Lady Arden

Miller and others
(Appellants)
and
Ministry of Justice
(Respondent)

Appellants

Robin Allen QC

Rachel Crasnow QC

(Instructed by Browne Jacobson LLP)

Respondent

John Cavanagh QC

Charles Bourne QC

(Instructed by The Government Legal Department)

Heard on 11 July 2019

Lord Carnwath

( with whom Lady Hale, Lord Reed, Lord Wilson and Lady Arden agree)

Introduction
1

The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers' Directive (Directive 97/81) (“PTWD”), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (“PTWR”). The directive was required to be transposed into domestic law by 7 April 2000.

2

The appellants are four judges, each of whom has held one or more appointments as fee-paid part-time judges, in some cases moving between such part-time and full-time salaried appointments. They are illustrative of the different ways in which such part-time (PT) and full-time (FT) appointments may be combined in a single career, as Mr Allen QC (for the appellants) explains in his printed case:

“The careers of Mr Haworth and Mr Sprack illustrate the common situation of a judge moving from PT to FT in the same jurisdictions: Mr Haworth as a Costs Judge, and Mr Sprack as an Employment Judge. Mr Sprack also reverted to working PT before finally retiring.

The careers of Mr Fox and Mr Wain illustrate the kinds of judicial careers that are based on a portfolio of PT judicial appointments which can change over time prior to retirement. Additionally, Mr Wain also held a FT appointment as a District Judge between May 2004 and January 2011, though even then he also held a PT appointment as a Mental Health Tribunal judge.”

3

Each appellant lodged a claim with the Employment Tribunal more than three months after the end of a part-time appointment, and therefore out of time if that is the relevant date; but within time, if the relevant date is the date of retirement. In a decision given on 2 January 2014 EJ Macmillan held that the period of three months started to run from the end of any part-time appointment, and that the claims were accordingly out of time. He declined to exercise the discretion (under PTWR para 8(3)) to extend time as being “just and equitable”; that part of his decision is no longer in issue. Since then there has been no substantive judicial consideration of these issues at higher levels, the issues being treated as in substance turning on decisions, domestic and European, in the related case of O'Brien v Ministry of Justice (see below).

The statutory framework
4

In Ministry of Justice v O'Brien (No 2) [2017] UKSC 46; [2017] ICR 1101, para 10, Lord Reed summarised the domestic legislation governing judicial pensions:

“Domestic legislation provides for the payment of judicial pensions under two statutes, the Judicial Pensions Act 1981 and the Judicial Pensions and Retirement Act 1993. The 1981 Act applies to persons appointed prior to 31 March 1995, unless they elect to have their pension paid under the 1993 Act. The 1993 Act applies to persons appointed on or after 31 March 1995. Under the Acts, a pension is payable to any person retiring from ‘qualifying judicial office’, subject to their having attained the age of 65 and, under the 1993 Act, subject also to their having completed at least five years' service in such office. At the material time, full-time judges and salaried part-time judges held a qualifying judicial office, but fee-paid part-time judges, such as recorders, did not. Under both schemes, the amount of pension payable to a full-time judge is based on his or her final year's salary and on his or her number of years' service in a qualifying judicial office by the date of retirement. Under the 1981 Act, circuit judges must have served for 15 years in order to qualify for a full pension of one half of their last annual salary. The corresponding period under the 1993 Act is 20 years. Under both schemes, judges who have served for shorter periods receive a proportion of the full pension corresponding to the length of their service. There is also a lump sum payable on retirement, the sum being based on the amount of the annual pension. Judicial pensions were at the material time non-contributory. Since 2012, judges have had to pay a contribution.”

5

For present purposes it is sufficient to refer to the provisions of the 1993 Act, which applied to those appointed on or after 31 March 1995. The basic concept in the 1993 Act is “qualifying judicial office” (1993 Act section 1(1)). By section 1(6):

“(6) For the purposes of this Act, a person shall be regarded as holding, or serving in, qualifying judicial office at any time when he holds, on a salaried basis, any one or more of the offices specified in Schedule 1 to this Act; …”

Schedule 1 is a list of offices ranging from court judges at different levels, through “court officers” (such as Queen Bench Masters), to “members of tribunals” in a range of specified jurisdictions. It is to be noted that the focus (under section 1(6)) is not on individual offices or appointments, but on “qualifying judicial office” — a composite term which may comprise any one or more of the listed offices.

6

By section 2(1):

“Any person to whom this Part applies —

(a) who retires from qualifying judicial office on or after the day on which he attains the age of 65, and

(b) who has, at the time of that retirement, completed, in the aggregate, at least five years' service in qualifying judicial office,

shall be entitled during his life to a pension at the appropriate annual rate.”

Later subsections deal with the variation of the pension entitlement in special cases: for early retirement on medical grounds (section 2(3)); early removal from office (section 2(4)); and resumption of qualifying office after beginning to take a pension (section 2(5)). Section 3 fixes the appropriate annual rate by reference to “the aggregate length of … service in qualifying judicial office” at the point of retirement. The appellants, so long as not being paid on a “salaried basis”, were excluded from the definition of “qualifying judicial office”, and therefore also excluded from rights to pensions under the Act.

7

The PTWR, which came into force on 1 July 2000, and gave effect to the PTWD, were designed to put part-time workers on the same footing as their full-time equivalents. Regulation 5 provided:

“5(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker —

(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer …”

Initially this did not assist the appellants, since regulation 17 provided:

“These Regulations do not apply to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid basis.”

However, the Supreme Court later made clear (in the first O'Brien judgment — see below) that regulation 17 must be disapplied so as to bring the meaning of “worker” in the PTWR into line with the PTWD. This opened the way to claims by fee-paid judges, such as the appellants, under the PTWR.

8

The relevant time limit for a complaint to the Employment Tribunal is set by regulation 8 of the PTWR which provides:

“(2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months … beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them,

(4) For the purposes of calculating the date of the less favourable treatment or detriment under paragraph (2) —

(a) where a term in a contract is less favourable, that treatment shall be treated, …, as taking place on each day of the period during which the term is less favourable; …”

O'Brien v Ministry of Justice
9

Dermod O'Brien QC was appointed as a Recorder of the Crown Court from March 1978, initially for three years, but extended periodically until his retirement on 31 March 2005. Although his terms of service gave no right to a pension, he claimed to be entitled under the PTWR to a pension on terms equivalent to those applying to a circuit judge. Following a reference to the CJEU, in February 2013 his claim in principle was upheld by the Supreme Court ( O'Brien v Ministry of Justice [2013] UKSC 6; [2013] 1 WLR 522; [2013] ICR 499).

10

The claim was remitted to the Employment Tribunal for determination of other matters in dispute, including a dispute as to the period to be taken into account in calculating his pension. The question was whether, in calculating the amount of his pension, account should be taken of the whole of his service since the beginning of his appointment on 1 March 1978 (a period of 27 years), or only his service since the deadline for transposing the directive expired (a period of less than five years). Following conflicting decisions of the Employment Tribunal and the Employment Appeal Tribunal, on 6 October 2015 the Court of Appeal held that only the shorter period should be taken into account ( O'Brien v Ministry of Justice [2015] EWCA Civ 1000; [2016] ICR 182). On 9 November 2015, the Court of Appeal dismissed the appellants' appeals in the Miller cases without further analysis, treating them as governed by its judgment in O'Brien.

11

Following an appeal to the Supreme Court, the court decided on 12 July...

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2 cases
  • Eric Carter v The Chief Constable of Essex Police
    • United Kingdom
    • Queen's Bench Division
    • 21 January 2020
    ...THE MILLER CASE 42 When this judgment was about to be sent out to the parties in draft, the Supreme Court gave judgment in Miller v. Ministry of Justice [2019] UKSC 60. While I have not had the benefit of submissions on the Miller case, I have considered its relevance to the Carters' claim......
  • Eric Carter v The Chief Constable of Essex Police
    • United Kingdom
    • Queen's Bench Division
    • 21 January 2020
    ...THE MILLER CASE 42 When this judgment was about to be sent out to the parties in draft, the Supreme Court gave judgment in Miller v. Ministry of Justice [2019] UKSC 60. While I have not had the benefit of submissions on the Miller case, I have considered its relevance to the Carters' claim......
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    • Mondaq UK
    • 19 December 2019
    ...Supreme Court has handed down a judgment in Miller and others v Ministry of Justice [2019] UKSC 60 (Miller) - the latest decision to focus on pension rights for part-time The question for the Supreme Court in Miller was when does time start to run for claims brought by part-time judges in r......

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