Key Facts
- •Three circuit judges (Claimants) appointed after 31 March 1995, previously served as part-time fee-paid recorders.
- •On appointment as circuit judges, they were compulsorily enrolled in the JUPRA pension scheme, denying access to the more favorable JPA scheme.
- •Their comparators were circuit judges appointed before 31 March 1995, who retained access to JPA scheme terms under JUPRA.
- •Claimants had already received JPA-equivalent pensions for their recorder service following the O’Brien litigation.
- •The tribunal found the offices of recorder and circuit judge to be different, despite similar judicial activities.
- •The tribunal held that the less favorable treatment stemmed from appointment after 31 March 1995, not part-time recorder status.
Legal Principles
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) and Part-Time Workers Directive 97/81/EC (PTWD)
PTWR and PTWD
Comparability of full-time and part-time workers is determined at the time of alleged less favorable treatment.
Regulation 2(4) PTWR
The effective and predominant cause of less favorable treatment must be determined.
Regulation 5(2)(a) PTWR
Marleasing principle: Domestic legislation should be interpreted to comply with EU law where possible.
Marleasing SA v La Comercial Internacional de Alimentación SA
Miller v. Ministry of Justice: Less favorable treatment can crystallize at retirement regarding pensions.
Miller v. Ministry of Justice [2020] ICR 1143, SC
O’Brien v. Ministry of Justice: Part-time judges perform essentially the same activities as full-time judges.
O’Brien v. Ministry of Justice [2012] ICR 995
Outcomes
Appeal dismissed.
The tribunal correctly determined that the less favorable treatment was not caused by the claimants' part-time status as recorders, but by their appointment as circuit judges after 31 March 1995. The prior discrimination regarding their recorder pensions had already been remedied.