Appeal By The Advocate General For Scotland And John Barton Against A Decision And Order Of The Eat Dated 24 April 2015
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lady Smith,Lord Drummond Young |
| Judgment Date | 15 December 2015 |
| Neutral Citation | [2015] CSIH 92 |
| Court | Court of Session |
| Docket Number | XA68/15 |
| Published date | 15 December 2015 |
| Date | 15 December 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 92
XA68/15
Lady Smith
Lord Drummond Young
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY SMITH
in the APPEAL
by
THE ADVOCATE GENERAL FOR SCOTLAND
Appellant and respondent;
and
JOHN BARTON
Respondent and claimant:
against a decision and order of the EAT dated 24 April 2015
Act: Napier, QC; Morton Fraser LLP
Alt: No appearance
15 December 2015
Introduction
[1] Mr Barton, who is a solicitor, worked part-time as a clerk to the General Commissioners of Income Tax until 2009, when their functions were transferred to the tribunal structure established by the Tribunals Courts and Enforcement Act 2007. He had done so for about 38 years. His duties required him to work as a clerk, in Scotland, during less than 50% of normal working hours; in his form ET1, he stated that he worked as a clerk for four hours each week. He retired on 31 March 2009.
[2] Mr R M Howey also worked as a clerk to the General Commissioners of Income Tax. He worked in St Albans. He retired on 30 November 2001. Prior to retiral, his duties occupied 3 ½ days each week, amounting to 70% of a normal five day working week.
[3] Mr Howey was granted a pension when he retired. Mr Barton was not. Mr Barton contends that he received less favourable treatment than Mr Howey, contrary to his part – time worker’s rights. The Employment Tribunal (sitting in Edinburgh) dismissed that claim. Mr Barton appealed to the Employment Appeal Tribunal and his appeal was upheld. The Advocate General for Scotland ( representing the Secretary of State for Scotland, the Ministry of Justice and Her Majesty’s Courts and Tribunals Service, all of whom have a relevant interest), now appeals to this court, contending that the Employment Tribunal was correct; Mr Barton’s claim was, he says, rightly rejected.
Mr Howey’s pension
[4] Mr Howey applied for a pension before he retired. A memorandum to the Lord Chancellor in relation to his application, dated 3 April 2001, was in the following terms:
“Mr Howey’s work in this period occupied 3 ½ days each week. This represents 70% of a normal 5 – day week. The test prescribed by section 3(3) of the Taxes Management Act 1970 is that a clerk…. ‘is required to devote substantially the whole of his time to the duties of his office.’ There is a precedent that Mr Howey’s predecessor was granted a pension on a similar workload. It is therefore recommended that the level of 70% of a normal working week would be accepted as falling within the meaning of the term ‘substantially’.”
The Lord Chancellor approved that recommendation and Mr Howey was awarded a pension with effect from the date of his retirement (30 November 2001). The terms of section 3(3) are set out in their entirety in paragraph [6] below.
Mr Barton’s application for a pension
[5] Mr Barton applied for a pension by letter dated 13 December 2008 in which he relied on the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”), article 141 of the Treaty of Rome and the Equal Pay Directive 75/117, contending that part-time clerks should not be treated less favourably than “our full-time brethren”. He did not refer to any specific full-time clerk with whom he sought to compare himself. His application was rejected by letter dated 6 April 2009 for the reason that he could not be “classed as full-time within the meaning of the Act”. That is, he was thereby told that he could not be classed as a “full-time clerk”, that being the status to which section 3(3) of the 1970 Act relates.
The relevant legislation
Clerks’ pensions
[6] Clerks to the General Commissioners of Income Tax were workers, not employees, and they had no right to any pension. However, under certain provisions of the Taxes Management Act 1970, the Secretary of State for Scotland had a discretionary power to award a pension to a “full-time clerk”, as did the Lord Chancellor. This was in circumstances where the norm was for such a clerk to perform clerk’s duties on a part-time basis. Section 3(3) of the 1970 Act – which was repealed as from 1 April 2009, when the functions of the commissioners were transferred to the First – tier Tribunal (Tax and Chancery Chamber) under the Tribunals Courts and Enforcement Act 2007 section 3 – provided:
“The Lord Chancellor or, in Scotland, the Secretary of State may, in such cases as he may in his discretion determine, pay to or in respect of any full-time clerk such pension allowance or gratuity, or make such provision for the payment of pension allowance or gratuity to or in respect of any full-time clerk, as he may, with the approval of the Treasury, determine. In this subsection, ‘full-time clerk’ means a clerk as regards whom the Lord Chancellor or Secretary of State is satisfied that he is required to devote substantially the whole of his time to the duties of his office.”
When considering the application of the Marleasing doctrine (see below), it is important to note that the 1970 Act was not enacted to implement a European Directive.
Part-time workers
[7] As a part-time worker, Mr Barton was entitled to the protection afforded to him by the PTWR. The relevant paragraphs are as follows.
“ 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.
(2) The right conferred by paragraph (1) applies only if –
(a) the treatment is on the ground that the worker is a part-time worker, and
(b) the treatment is not justified on objective grounds. ………”
and
“ 2 (1) A worker is a full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is identifiable as a full-time worker.
(2) A worker is a part-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is not identifiable as a full-time worker.
………………
(4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place –
(a) both workers are-
(i) employed by the same employer under the same type of contract, and
(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and
(3) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub paragraph (a), works or is based at a different establishment and satisfies those requirements.”
“Worker” is defined in paragraph 1(2) of the PTWR as meaning:
“…an individual who has entered into or works under or (except where a provision of these Regulations otherwise requires) where the employment has ceased, worked under –
- a contract of employment; or
- any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”
[8] The principle of non‑discrimination enshrined in the PTWR is founded upon clause 4 of Council Directive 97/81/EC concerning the framework agreement on part-time work as extended to the United Kingdom by Council Directive 98/23/EC. Clause 4 provides:
“In respect of employment conditions, part- time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds.”
It is of significance for the present case that, unlike the position in relation to other forms of discrimination, a claimant requires to show that his treatment was less favourable than that afforded to an actual comparator. Comparison with a hypothetical comparator will not do. Also, the PTWR were, unlike the 1970 Act, enacted to implement a European Directive and it has not been suggested that they and the Directive are in conflict; both the Directive and the PTWR prohibit less favourable treatment on the ground of part-time worker status unless it is objectively justified.
Ministry of Justice policy
[9] Two years after Mr Barton’s application had been refused, the Ministry of Justice (“MoJ”) issued a policy document dated December 2011 and entitled “Policy for Determination of Pension for Clerk to the General Commissioners of Income Tax Pursuant to s.3(3) of the Taxes Management Act 1970”. It was not disputed that it reflected the policy that had been in place for some time prior to 2011 and was, in particular, the policy applied when Mr Barton applied for a pension. The policy statement provided for four stages: (i) “Stage one: to determine whether the clerk was a “full-time clerk””, (ii) “Stage two: The Lord Chancellor’s Discretion”, (iii) “Stage three: The Pension Calculation”, and (iv) “Stage four: Treasury Approval.”
[10] Stage one of the policy provided that the “threshold” of 70% used in previous claims would be retained and if a claim passed that threshold then, but only then, the claim could move to stage two. The policy was not concerned with identifying whether or not the relevant pension claimant...
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