This statement on behalf of the Ministry of Justice is made in response to decisions by the UK Supreme Court in O’Brien v Ministry of Justice  UKSC 6, the Employment Tribunal on 2 January 2014 in Miller & Others v Ministry of Justice and the Employment Appeal Tribunal on 4 March 2014 in Ministry of Justice v O’Brien. The Employment Tribunal continues to hear preliminary hearings on related issues. However the Ministry of Justice is aware that past and present fee-paid judicial office holders would like to know what steps the Ministry of Justice is taking in response to the judgments thus far.
This is the first in a series of communications that the Ministry of Justice will publish to explain what arrangements will be put in place to manage claims from eligible judicial office holders.
The Lord Chancellor’s statement of 31 May 2013 (as amended 18 November 2013) accepted that a number of fee-paid judicial office holders, where a legal qualification is a requirement of appointment and subject to having a salaried full-time comparator, are entitled to a pension. Once the litigation has concluded, a final list of those fee-paid judicial offices eligible for a pension will be drawn up.
For past and present eligible fee-paid judicial office holders, a fee-paid judicial pension scheme offering benefits in line with the current judicial pension scheme for salaried judges is being developed. It is anticipated that from 2015-16, the scheme will provide pensions for service from 7 April 2000 until 1 April 2015. It will also compensate those who have already retired for past losses. Entitlement in all cases depends upon a fee-paid judicial office-holder having brought a claim in time or still being able to do so, having regard to the terms of the Moratorium of 5 April 2013.
When the terms of the scheme have been developed there will be a consultation with those fee-paid judicial office holders eligible for membership.
From 1 April 2015 serving salaried and fee-paid judicial office-holders will transfer into the New Judicial Pension Scheme (NJPS). The terms of NJPS are still being developed and will be subject to a three month consultation in due course. There will be a further announcement detailing those judicial office-holders who will be eligible for membership of NJPS.
The Employment Tribunal in Miller considered how time limits apply to the pension and non-pension claims of eligible fee-paid judicial office holders.
The Tribunal held (1) for the purposes of bringing a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“2000 Regulations”), a three month time limit runs from the end of each fee-paid appointment about which a complaint is made irrespective of whether the claimant transfers into a salaried appointment or a new fee-paid appointment, or holds other fee-paid appointments that continue and (2) that there are no generic grounds which made it just and equitable to extend time. The Ministry of Justice is aware that an appeal has been lodged in relation to points (1) and (2).
The Tribunal also held that where the sole reason for a pension claim being out of time is that the judicial office holder delayed commencing proceedings because of the Moratorium issued by the Ministry of Justice on 5 April 2013 it would be just and equitable to extend time.
In Ministry of Justice v O’Brien, the Employment Appeal Tribunal heard an appeal on 28 January 2014 from the Employment Tribunal in O’Brien v Ministry of Justice (19 August 2013) on whether reckonable service for pension purposes begins from 7 April 2000 or from appointment (if before 7 April 2000). The judgment of the Appeal Tribunal given on 4 March 2014 is that under the 2000 Regulations reckonable service begins from the date by which the relevant European Directive should have been transposed, namely 7 April 2000 (or from appointment, if after that date). The Ministry is therefore currently working on the basis that only service from 7 April 2000 is to be taken into account for pension purposes. It is aware that there is a possible appeal on the point.
On a number of non-pension items, the Employment Tribunal in Miller held (where there is a full-time comparator and a claim is within time) that there has been less favourable treatment without objective justification. The Ministry of Justice is not seeking to appeal against the judgment on these points and is developing policy for them. They are as follows.
(a) Annual leave – holiday pay, but only in the circumstances set out in the judgment (which dealt with claims made under the Working Time Regulations 1998 rather than the 2000 Regulations). The Ministry of Justice will write separately notifying fee-paid judges that holiday pay is included in the daily fee.
(b) Training – entitlement to a full day’s fee for a training day. The Ministry of Justice will develop a training fees policy with the senior judiciary and Judicial College that reflects final judicial decisions taken about past losses and what is appropriate for inclusion in the fee.
(c) Sick pay – the Ministry of Justice will develop a sick pay policy with the senior judiciary. This will reflect the Tribunal’s ruling that sick pay is due to a fee-paid judge who loses a day’s pre-booked sitting through illness or who is unable to sit because of illness for the minimum number of days guaranteed by his/her terms and conditions, where the sitting in question would not have been cancelled by the Ministry of Justice in circumstances disentitling the judge to a fee.
(d) London Weighting – the Ministry of Justice will develop a policy with the senior judiciary.
(e) Writing up fees in the Social Entitlement Chamber – the Ministry of Justice will develop a policy with the senior judiciary.
The Miller judgment includes an agreed declaration about the underpayment of daily fees in the Social Entitlement Chamber from 2000 to the present day and in the Employment Tribunal from 2000 to 31 March 2013.
Claims handling arrangements
In light of the Miller judgment in respect of past losses relating to paragraphs 9 and 10 above, the Ministry of Justice will implement a claims handling system for eligible fee-paid judicial office holders, as described in the Miller judgment, which will remedy the less favourable treatment.
Non-pension claim payments will only be made to claimants who have brought, or could bring, a claim in time (taking into account any extension) whose claim relates to payments due from 7 April 2000 onwards.
If you are a potential claimant and your non-pension claim would have been in time for the purposes of regulation 8(2) of the 2000 Regulations as at 3 June 2013, the Ministry of Justice invites you to particularise your losses and from 1 June 2014 to 31 August 2014 to submit your claim to the Judicial Pay Claims team at the contact address below. The Judicial Pay Claims team will seek to reconcile your claim with Ministry of Justice records in order to arrive at a settlement. This offer applies to eligible fee-paid judicial office-holders in England and Wales, Scotland and Northern Ireland insofar as their potential claim is against the Ministry of Justice.
If you wish to contact the Ministry of Justice about this statement then please write to: JudicialPayClaims@justice.gsi.gov.uk