O'Brien claims: overview of present position
The judgment in brief
Mr O'Brien, who was a fee paid part-time recorder, won his claim in the Supreme Court that he was entitled to a pro rata pension. The Court held that:
1. He was a worker within the meaning of the EU Part Time Workers Directive and so the UK Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Part Time Worker Regulations) applied to him. He could therefore bring a claim of less favourable treatment on the basis that he was denied a pension when his full-time, salaried comparators (judges doing similar work) were entitled to one.
2. The differential treatment between part-time fee paid and full-time salaried judges was unlawful discrimination as it was not objectively justified.[O'Brien judgment]
Other part-time fee paid judges will benefit from this decision, whether working in courts or tribunals. They must be employed by the same employer (the MOJ) under the same type of contract and engaged in the same or broadly similar work as a full time comparator. Claims may be made by existing fee-paid judges and those who were fee-paid but are now salaried (in relation to the period they were fee-paid).
Leigh Day is representing many fee paid judges in their claim for pro rata pension on retirement.
In addition to pension claims Leigh Day are also making further claims for:
a) full pay for training days as at present only half a day’s pay is paid;
b) pay for judgment writing in certain jurisdictions;
c) London weighting (where applicable);
d) some pro rata holiday pay
e) daily rate/denominator claims for those in certain jurisdictions, on the basis that the daily rate has been incorrectly calculated as a result of using an incorrect denominator.
Claims (a) to (e) are additional claims for remuneration given (or given more preferentially) to salaried judges and unlawfully denied (or offered in a less favourable way) to fee paid judges. They are termed ‘pay claims’. A preliminary hearing took place in December 2013 at which a number of issues were considered, including test claims in relation to the pay claims set out above. The Employment Tribunal upheld the claims for:
a) a full day’s pay for each full day of training;
b) payment for judgment writing in certain jurisdictions;
c) London weighting (where applicable); and
d) some holiday payments in certain situations
e) some daily rate/denominator claims in certain jurisdictions.
Chris Benson and his team are acting for fee-paid and former fee-paid judges claiming equal treatment with their full-time salaried colleagues). Current and former fee-paid judges can claim. If you are considering a claim please contact Shubha Banerjee or Maya Grantham.
In view of changes to the existing pension scheme, current salaried judges should also seek separate advice about whether to bring an O’Brien claim.
When to put in a claim
The primary time limit for lodging a claim under the Part Time Worker Regulations is three months less one day, where time starts to run from the date of the act about which the complaint is made. Although the point is subject to an appeal (which is pending), the Employment Tribunal found at the preliminary hearing in December 2013 that time started to run for the purposes of the Part Time Worker Regulations in these claims from the end of the period of fee-paid service in respect of which a claimant brings a claim. In other words, the Tribunal found that the primary time limit for a claim under the Part Time Worker Regulations is three months less one day from the end of each period of fee-paid service in respect of which pension and other entitlements are claimed.
The time limits are slightly different in respect of the claims for holiday pay, which are pursued under the Working Time Regulations 1998 rather than the Part Time Worker Regulations.
There is provision within the Part Time Worker Regulations for the time limit to be extended where there is a just and equitable reason for doing so.
The MoJ’s announcement of 5 April 2013 about a moratorium
The MoJ announced on 5 April that there would be a moratorium on claims that:
- are pension-related (ie the moratorium did not apply to pay claims); and
- are brought by current or former fee-paid judicial office holders; and
- are brought under the Part Time Worker Regulations; and
- would be in time in accordance with the time limits stipulated in the Regulations as at 1 March 2013.
The Employment Tribunal held at the preliminary hearing in December 2013 that those claimants whose relevant period of fee-paid service had ended on or after 2 December 2012 and who had not lodged claims for pension within the relevant time limit because of reliance upon the moratorium could proceed with their pension claims. In other words, those who satisfied the criteria above and did not lodge claims in reliance upon the moratorium could proceed with their pension claims, even if the time limit had passed without their having lodged a claim.
The MoJ also issued another moratorium in June 2013 in relation to those pay claims which would have been in time as at 3 June 2013. However, in our opinion, neither this nor the on pay claims gives any guarantee of payment. As a result, we are not encouraging reliance upon this moratorium unless absolutely necessary.
The MoJ has said that they will make payment to those whose actual or potential pay claims were in time, in our opinion this is no guarantee of payment and, where an individual leaves the period of fee-paid service in respect of which they seek entitlements, the time limit will start to run and just under three months thereafter pay claims will be out of time. As a result, we consider it advisable for those whose claims are in time to lodge a claim in any event (see later).
We anticipate that various arguments will be raised about time limits by the MoJ, although some arguments seem to us to be far stronger than others. The MoJ is raising limitation arguments in relation to judges who ceased to be fee-paid more than 3 months before the moratorium, ie prior to 2 December 2012 (and, in relation to pay claims, those who ceased to be fee-paid more than three months before that moratorium). Many retired judges and salaried judges will be affected by this.
As a result of all of the above, our advice in relation to timing remains as follows:
In relation to retired fee-paid judges or those who have left fee-paid service for a salaried or a further fee-paid appointment, claims should be brought wherever possible within three months of retirement or leaving.
Although as mentioned above there are provisions allowing time to be extended in certain limited circumstances, it is not advisable to rely upon these unless it is absolutely necessary as there are no guarantees that a tribunal will allow these provisions to be applied.
If three months have already passed, then claims should be lodged immediately as the extension of time provisions mentioned above require claims to be lodged without delay.
For existing fee paid judges still sitting, there are advantages in putting in a claim now, because the MOJ may settle/resolve existing claims in one tranche and possibly in priority to those who are entitled but have not lodged claims.
The MoJ made an announcement dated 27 March 2014 which states that a pension scheme for fee-paid judges is being developed which will offer benefits in line with the current Judicial Pension Scheme. The suggestion is that the new scheme will be implemented in 2015/2016. We are awaiting details of the scheme proposed.
In relation to the pay claims, the MoJ has also recently said that they will change their practices going forward in terms of payments for judgment writing in certain jurisdictions, training day payments, etc. Once this occurs, the time limit for claims will start to run in relation to those entitlements, whether or not fee-paid judges remain in service after that time, They have also stated that that they will make payment of backdated monies owing to those entitled (ie those in jurisdictions which it accepts have an appropriate full-time salaried comparator and where claims, actual or potential, are in time) by about the end of this year, but, as mentioned above, this is not in our opinion a guarantee of payment.
Next steps to enforce any claim
Most claims are currently stayed and the Employment Tribunal is gradually lifting the stay to deal with different aspects of the claims. Issues currently being considered include judgment writing claims for certain jurisdictions, appropriate comparators for those sitting in certain jurisdictions, and just and equitable extension of the time limit arguments specific to particular claimants.
Even if there are no immediate time limit issues affecting your claim, our advice is to lodge a claim sooner rather than later.
We will post further information on this site as and when appropriate. Please note that this is only very general advice and specific advice can be given on request. Chris and his team are also advising salaried judges about challenging the changes to the Judicial Pension Scheme, so if you wish to find out more about those challenges, please contact Shubha Banerjee or Maya Grantham in the first instance.