A group of part-time judges has been refused permission to bring claims for better pensions after a judge ruled they were out of time.
The claims were brought after the Supreme Court ruled in 2013 that part-time judges are ‘workers for the purpose of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000’, enabling part-time recorder Dermod O’Brien to win his fight to claim a full pension.
Miller & Others v The Ministry of Justice went to the Employment Appeal Tribunal after an employment tribunal ruled in January 2014 that the part-time judges were out of time to bring a case.
At the first hearing, the claimants argued that there would have been no point bringing the claim before a final decision was made in O’Brien, which they said was a test case. They also said that the MoJ had issued a moratorium in 2013 preventing the need for potential claimants to lodge 'protective' claims.
But employment judge John MacMillan said the claimants were sophisticated litigants and would have known that as part-timers they had no access to the MoJ’s pension scheme. The judge also said they would have known that if they had a claim, a limitation period would apply.
The tribunal judgment commented: ‘It seems that we have a large crowd of onlookers knowing that if the outsider wins they will benefit greatly but, doubting his chances of success, they wait until he unexpectedly pips the favourite at the post only to object when the bookmaker refuses to accept bets on the entirely understandable grounds that the race is over!’
On appeal to the Employment Appeal Tribunal, the claimants argued that MacMillan did not ‘balance off’ the fact that O’Brien was a test case, and said he did not properly consider the reasons for the MoJ's moratorium, namely that the tribunal would have been swamped if claimants had issued their claims in time.
But in the appeal tribunal Mrs Justice Elisabeth Laing DBE (pictured) dismissed this argument, pointing out that the claims were already ‘well out of time’ by the time the moratorium was issued in 2013.
She said: ‘The issue is not whether […] it would have been "just and equitable" to have a flood of claims before the moratorium, but not after it was published. The issue is whether it was just and equitable for time to be extended for those who should have made claims before the moratorium was published.’
Laing also said she would not accept the argument that the employment tribunal should have considered what would have happened had the claims been issued in time.
She said: ‘The likelihood (if it be one) that a claim issued within a limitation period would have been stayed is neither here nor there, nor is the fact that if all claims had been issued in time, there would have been a flood of them.’
She ruled the employment tribunal was right to refuse to extend time, and dismissed the part-time judges' appeal.