Miller and Others v Ministry of Justice: SC 16 Dec 2019

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). The Appeals were allowed.
As judicial officers are not employed under a contract of employment, the PTWR must be construed artificially and references to the ‘terms of a contract’ must be applied by analogy. It must be borne in mind that the judicial pension scheme is not based upon individual appointments, but the composite term ‘qualifying judicial office’, may include a number of appointments.
That must be acknowledged when comparing part and full-time judges called for by the PTWR, as it may be misleading or unfair to direct
attention to the nature and timing of individual part-time appointments. Entitlement to pension should not be governed by the varied combinations of fee-paid or salaried offices undertaken by different individual judges. This would not sit with the aggregation provided for by the 1993 Act.
Unfavourable treatment may relate to the terms of a contract or ‘any other detriment’ resulting from an act or failure to act by the employer (Reg 5). By analogy,
in the context of judicial pensions,
A part-time judge may complain both: (1) during their period of service that their terms of office do not include proper provision for a future pension; and, (2) on retirement, that there no proper pension was available. The first does not exclude the latter. Case law, indicates that the point of unequal treatment occurs at the time the pension is paid, and accords with common sense.


Lady Hale, President, Lord Reed, Deputy President, Lord Wilson, Lord Carnwath, Lady Arden


[2019] UKSC 60


Bailii, Bailii Summary


Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000


England and Wales


At EATThe Ministry of Justice v O’Brien EAT 4-Mar-2014
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
Appeal fromMinistry Of Justice v O’Brien and Others CA 9-Nov-2015
. .
Reference to ECJO’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
CitedTen Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
At ECJO’Brien v Ministry of Justice ECJ 7-Nov-2018
Reference for a preliminary ruling – Social policy – Directive 97/81/EC – Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC – Clause 4 – Principle of non-discrimination – Part-time workers – Retirement pension – Calculation . .
CitedWalker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
CitedBarclays Bank Plc v Kapur and others EAT 3-Dec-1992
. .
CitedO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
CitedBarclays Bank Plc v Kapur HL 1991
The bank had decided not to credit re-located employees, for pension purposes, with their previous service in East Africa. The employees had been re-located to the United Kingdom some time in the early 1970s all upon terms that their prior service . .
CitedGilham v Ministry of Justice SC 16-Oct-2019
The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
CitedSougrin v Haringey Health Authority EAT 31-Jul-1991
The applicant alleged discrimination arising out of a disputed grading. She claimed the grading she had received in 1988 amounted to direct discrimination on grounds of race, and that because this affected her pay there was a ‘continuing act’ of . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions

Updated: 25 May 2022; Ref: scu.645793