Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 92

XA68/15

 

Lady Smith

Lord Drummond Young

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY SMITH

in the APPEAL

by

THE ADVOCATE GENERAL FOR SCOTLAND

Appellant and respondent;

and

JOHN BARTON

Respondent and claimant:

against a decision and order of the EAT dated 24 April 2015

Act:  Napier, QC;  Morton Fraser LLP

Alt:  No appearance

 

15 December 2015
Introduction

[1]        Mr Barton, who is a solicitor, worked part-time as a clerk to the General Commissioners of Income Tax until 2009, when their functions were transferred to the tribunal structure established by the Tribunals Courts and Enforcement Act 2007.  He had done so for about 38 years.  His duties required him to work as a clerk, in Scotland, during less than 50% of normal working hours;  in his form ET1, he stated that he worked as a clerk for four hours each week.  He retired on 31 March 2009.

[2]        Mr R M Howey also worked as a clerk to the General Commissioners of Income Tax.  He worked in St Albans.  He retired on 30 November 2001.  Prior to retiral, his duties occupied 3 ½ days each week, amounting to 70% of a normal five day working week. 

[3]        Mr Howey was granted a pension when he retired.  Mr Barton was not.  Mr Barton contends that he received less favourable treatment than Mr Howey, contrary to his part – time worker’s rights.  The Employment Tribunal (sitting in Edinburgh) dismissed that claim.  Mr Barton appealed to the Employment Appeal Tribunal and his appeal was upheld.  The Advocate General for Scotland ( representing the Secretary of State for Scotland, the Ministry of Justice and Her Majesty’s Courts and Tribunals Service, all of whom have a relevant interest), now appeals to this court, contending that the Employment Tribunal was correct;  Mr Barton’s claim was, he says, rightly rejected.

 

Mr Howey’s pension

[4]        Mr Howey applied for a pension before he retired.  A memorandum to the Lord Chancellor in relation to his application, dated 3 April 2001, was in the following terms: 

“Mr Howey’s work in this period occupied 3 ½ days each week. This represents 70% of a normal 5 – day week. The test prescribed by section 3(3) of the Taxes Management Act 1970 is that a clerk…. ‘is required to devote substantially the whole of his time to the duties of his office.’  There is a precedent that Mr Howey’s predecessor was granted a pension on a similar workload. It is therefore recommended that the level of 70% of a normal working week would be accepted as falling within the meaning of the term ‘substantially’.”

 

The Lord Chancellor approved that recommendation and Mr Howey was awarded a pension with effect from the date of his retirement (30 November 2001).  The terms of section 3(3) are set out in their entirety in paragraph [6] below. 

 

Mr Barton’s application for a pension
[5]        Mr Barton applied for a pension by letter dated 13 December 2008 in which he relied on the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”), article 141 of the Treaty of Rome and the Equal Pay Directive 75/117, contending that part-time clerks should not be treated less favourably than “our full-time brethren”.  He did not refer to any specific full-time clerk with whom he sought to compare himself.  His application was rejected by letter dated 6 April 2009 for the reason that he could not be “classed as full-time within the meaning of the Act”.  That is, he was thereby told that he could not be classed as a “full-time clerk”, that being the status to which section 3(3) of the 1970 Act relates.

 

The relevant legislation
Clerks’ pensions

[6]        Clerks to the General Commissioners of Income Tax were workers, not employees, and they had no right to any pension.  However, under certain provisions of the Taxes Management Act 1970, the Secretary of State for Scotland had a discretionary power to award a pension to a “full-time clerk”, as did the Lord Chancellor.  This was in circumstances where the norm was for such a clerk to perform clerk’s duties on a part-time basis.  Section 3(3) of the 1970 Act – which was repealed as from 1 April 2009, when the functions of the commissioners were transferred to the First – tier Tribunal (Tax and Chancery Chamber) under the Tribunals Courts and Enforcement Act 2007 section 3 – provided: 

“The Lord Chancellor or, in Scotland, the Secretary of State may, in such cases as he may in his discretion determine, pay to or in respect of any full-time clerk such pension allowance or gratuity, or make such provision for the payment of pension allowance or gratuity to or in respect of any full-time clerk, as he may, with the approval of the Treasury, determine.  In this subsection, ‘full-time clerk’ means a clerk as regards whom the Lord Chancellor or Secretary of State is satisfied that he is required to devote substantially the whole of his time to the duties of his office.”  

 

When considering the application of the Marleasing doctrine (see below), it is important to note that the 1970 Act was not enacted to implement a European Directive.

 

Part-time workers
[7]       As a part-time worker, Mr Barton was entitled to the protection afforded to him by the PTWR.  The relevant paragraphs are as follows. 

“ 5(1) A part – time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker –

(a)      as regards the terms of his contract;  or

(b)                  by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2)            The right conferred by paragraph (1) applies only if –

(a)      the treatment is on the ground that the worker is a part-time worker, and

(b)      the treatment is not justified on objective grounds.  ………”

 

            and

 

 

“ 2 (1) A worker is a full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is identifiable as a full-time worker.

(2) A worker is a part-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is not identifiable as a full-time worker.

 

………………

 

(4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place –

(a) both workers are-

(i) employed by the same employer under the same type of contract, and

(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience;  and

(3) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub paragraph (a), works or is based at a different establishment and satisfies those requirements.” 

 

“Worker” is defined in paragraph 1(2) of the PTWR as meaning: 

“…an individual who has entered into or works under or (except where a provision of these Regulations otherwise requires) where the employment has ceased, worked under –

1. a contract of employment; or
2. any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

 

[8]        The principle of non‑discrimination enshrined in the PTWR is founded upon clause 4 of Council Directive 97/81/EC concerning the framework agreement on part-time work as extended to the United Kingdom by Council Directive 98/23/EC.  Clause 4 provides: 

“In respect of employment conditions, part- time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds.”  

 

It is of significance for the present case that, unlike the position in relation to other forms of discrimination, a claimant requires to show that his treatment was less favourable than that afforded to an actual comparator.  Comparison with a hypothetical comparator will not do.  Also, the PTWR were, unlike the 1970 Act, enacted to implement a European Directive and it has not been suggested that they and the Directive are in conflict;  both the Directive and the PTWR prohibit less favourable treatment on the ground of part-time worker status unless it is objectively justified.  

 

Ministry of Justice policy

[9]        Two years after Mr Barton’s application had been refused, the Ministry of Justice (“MoJ”) issued a policy document dated December 2011 and entitled “Policy for Determination of Pension for Clerk to the General Commissioners of Income Tax Pursuant to s.3(3) of the Taxes Management Act 1970”.  It was not disputed that it reflected the policy that had been in place for some time prior to 2011 and was, in particular, the policy applied when Mr Barton applied for a pension.  The policy statement provided for four stages:  (i) “Stage one:  to determine whether the clerk was a “full-time clerk””, (ii) “Stage two:  The Lord Chancellor’s Discretion”, (iii) “Stage three:  The Pension Calculation”, and (iv) “Stage four:  Treasury Approval.” 

[10]      Stage one of the policy provided that the “threshold” of 70% used in previous claims would be retained and if a claim passed that threshold then, but only then, the claim could move to stage two.  The policy was not concerned with identifying whether or not the relevant pension claimant was in fact a full-time worker or was to be regarded as a full-time worker;  it was only concerned with identifying whether or not, on an application of and for the purposes of section 3(3) of the 1970 Act, the claimant was a “full-time clerk”.

 

The issues
[11]      This appeal concerns, essentially, two issues, namely (i) whether, on a proper interpretation of section 3(3) of the 1970 Act, Mr Barton was entitled to pass the threshold in stage one of the policy referred to above? and (ii) whether Mr Barton was entitled to rely on Mr Howey as a “comparable full-time worker” for the purposes of the PTWR? 

[12]      These are preliminary issues and were, appropriately, considered as such by the Employment Judge.  Had he found in favour of Mr Barton, the claim would have required to proceed to a further hearing for the Employment Tribunal to determine (i) whether Mr Barton had in fact received less favourable treatment solely on the ground that he was a part-time worker (PTWR reg 5(2)(a, McMenemy v Capita Business Services Ltd 2007 IRLR 400)? and (ii) if he had, whether the treatment was justified on objective grounds (PTWR reg 5(2)(b))?

 

The Employment Tribunal’s reasons
[13]      Judge M A Macleod, sitting in the Employment Tribunal, provided written reasons which, insofar as relevant to this appeal, were: 

(i)   although “worker” – and, therefore, “comparable full-time worker” – could be interpreted as including a worker who was no longer employed by the respondent employer by the time a claim was presented to the tribunal, that did not detract from the need for the comparator to have been in the same employment as the claimant at the time of the less favourable treatment alleged (see:  paragraph 2(4) of the PTWR - provisions which “otherwise required”, to use the terminology of paragraph 1(2));  

(ii)  that Mr Howey could not, accordingly, have been a comparator for the purposes of the PTWR since his employment had terminated eight years earlier; 

(iii) in any event, Mr Howey was not a full-time worker;  he was assessed as full-time for the purposes of section 3(3) of the 1970 Act but he was, nonetheless, in fact a part‑time worker and was a part-time worker for the purposes of the PTWR.

 

Judge Macleod summarised his conclusions in his paragraph 108: 

“108.  It is quite correct, in my judgment, to assert, as the respondents have done, that the Regulations do not provide for the protection of workers against less favourable treatment when compared to workers who are not full-time but work  longer hours than they do.  That is not what the Regulations provide.  This claim is one brought under the Regulations, not under the Act, and in my judgment, the claim under the Regulations is bound to fail as the claimant has not identified a valid full-time comparator.”  

 

No argument was presented to the Employment Tribunal to the effect that the Secretary of State had, on the authority of Marleasing S.A v La Comercial Internacional de Alimentacion SA(C- 106/89)[1990] ECR 1 – 4135, been obliged to read the provisions of section 3(3) of the 1970 Act as though the expression “full-time” had been deleted from it.  Nor did Mr Barton present his argument to the Employment Tribunal on the basis that reg 5(1)(a) of the PTWR applied;  he accepted that no clerk, whether full-time or part-time, had a contractual right to a pension (paragraph 86 of the employment judge’s written reasons).  Rather, he presented his case on the basis he had been subjected to another detriment, act or failure to act (reg 5(1)(b)).

 

Mr Barton’s appeal to the Employment Appeal Tribunal
[14]      Mr Barton had two grounds of appeal.  The first was that he had been subjected to less favourable treatment as a continuing act which extended  throughout the period from the date in 2001 when Mr Howey was awarded a pension until his, Mr Barton’s, application was refused;  Mr Howey was, accordingly, a valid comparator.  The second ground was that Mr Howey had been awarded a pension on the basis that he was a “full-time clerk”.  It had thus been shown that there was a “custom and practice” of regarding someone who worked as a clerk for 70% of his time, as being a full-time worker.  In support of his appeal, he submitted that his position was directly comparable to the claimant in the case of Ministry of Justice v O’Brien [2013] UKSC 6.

[15]      Contrary to his position before the Employment Tribunal, Mr Barton presented his claim as being made not only under reg 5(1)(b) but also under reg 5(1)(a) – at paragraph 9 of her judgment, Lady Stacey states that he “..argues that the contract under which he worked has been interpreted by the respondent as including a term that no pension shall be payable except to those who work full – time ..”.  Mr Barton did not present any argument based on the Marleasing principle nor was Marleasing raised in the course of the hearing of the appeal.

[16]      However, Lady Stacey, held - applying Marleasing – that it was clear from the Directive and the PTWR that “granting the possibility of a pension to a full – time worker but denying a part- time worker access to that possibility is discriminatory” and that, therefore, “the Act requires to be read down by omitting the words “full-time” and the definition of that term.” (paragraph 22).  She found that the MoJ policy “made a person who works 70% of the maximum notionally available (sic) (such as Mr Howey), identifiable as a full-time worker.” (paragraph 23.)  She said that the Minister had been obliged to consider the PTWR when reviewing his policy (paragraph 22). Had he done so, he would have to have  concluded that his policy was discriminatory.  

[17]      She held that less favourable treatment had been applied to Mr Barton throughout his period of work as a clerk;  he had been treated less favourably when the 70% policy was decided on and since Mr Howey – who was identifiable as a full-time worker - was working at that time, Mr Howey was a valid comparator.  In that way, Mr Barton’s appeal seems to have succeeded on the basis that she held that he had been unlawfully treated less favourably than a full-time comparator in a manner that fell within reg 5(1)(b) not on any contractual ground.  She upheld the appeal and remitted the case to the Employment Tribunal not to determine whether or not there had, in fact, been less favourable treatment and/ or whether or not, if so, it was justified on objective grounds, but to go straight to a consideration of remedy thereby overlooking, it seems, that those issues had not yet been determined by the ET. 

 

Marleasing S.A v La Comercial International de Alimentacion SA

[18]      The passage in the judgment of the court (sixth chamber) which, we assume, Lady Stacey had in mind is: 

“8. …the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.”  

 

[19]      The interpretative obligation applies, accordingly, only where it is possible to interpret the legislation in a way which gives effect to the identified policy.

[20]      The relevant policy intention must first be identified (Glasgow City Council & Anr v Unison Claimants & Ors [2014] CSIH 27, Lord Brodie at paragraph 36).  In the present case, it is as enshrined in clause 4 of the framework directive and is that: 

“part –time workers shall not be treated in a less favourable manner than comparable full- time workers solely because they work part-time unless different treatment is justified on objective grounds.” 

 

When considering the purpose of the directive, recognising the desire to achieve an outcome whereby part-time workers are not treated less favourably than full-time workers in some respect is but part of it;  as a whole, the purpose of the directive is to protect part-time workers from such less favourable treatment only where that treatment is solely on the ground that they are of that status and the treatment is not in fact justified on objective grounds.

[21]      Once the relevant policy intention is identified, the interpretative task requires consideration of the terms of the domestic legislation.  As with the application of section 3 of the Human Rights Act 1998, there is no obligation to import a meaning which is inconsistent with a fundamental feature of the legislation or is incompatible with the “underlying thrust” of the legislation being construed or requires the reading in of words which are inconsistent with the scheme of the legislation:  Ghaidan v Godin- Mendoza [2004] 2 AC 557 per Lord Nicholls of Birkenhead at paragraph 33 and Lord Rodger of Earlsferry at paragraph 121.  As explained by Lord Templeman, in Duke v Reliance Systems Ltd [1988] AC 618 at pages 639 - 40:  “Section 2(4) of the European Communities Act 1972 does not … enable or constrain a British court to distort the meaning of a British statute…”.  The power and duty to interpret national law so as to conform with a European Directive does not enable the court to trespass into the field of lawmaking, that being the province of Parliament:  HMRC v IDT Card Services Ireland Ltd [2006] EWCA Civ 29 at [82];  O’Brien v Ministry of Justice [2015] EWCA Civ 1000 [48].  It is not as if a person adversely affected by the state’s failure to legislate in implementation of a directive is without a remedy;  he has a remedy against the state:  Francovich v Italy [1993] 2 CMLR 66.  

 

The appeal to this court

[22]      Mr Barton, who is now aged 78 years, elected not to present oral submissions but asked that account be taken of the arguments which he had presented to the tribunals, where he represented himself.  They are clearly recorded in the written reasons of the ET and EAT judges and in the text of the outline written submissions he presented to the EAT;  we have scrutinised them and given them careful consideration. 

[23]      For the appellant, Mr Napier made three preliminary submissions. 

[24]      First, regarding, Mr Barton’s reliance on the decision in the case of Ministry of Justice v O’Brien 2013 UKSC, the issues decided there were quite different, being whether a fee paid recorder fell within the definition of “worker” and whether there was objective justification for the Ministry of Justice denying them pensions whilst granting pensions to full-time judges.

[25]      Secondly, no reference to Marleasing having been made in the course of either tribunal hearing, the appellant had been deprived of the opportunity to present submissions in relation to it.  Had that opportunity been afforded, two principal submissions would have been advanced:  (i) that before the Marleasing principle could be applied, the whole terms of the relevant parent directive had to be considered and in this case that showed that the possibility of the less favourable treatment being justified and lawful was central to both it and to the PTWR, and (ii) even if the Marleasing principle was shown to be applicable that did not mean that references to “full-time” required to be removed from section 3(3) of the 1970 Act because to do so would be outwith appropriate limits, going against the grain of the legislation and distorting the domestic law.  Further, it would have been submitted that it was important to appreciate that section 3(3) was not enacted to implement any directive whereas the PTWR was.

[26]      Thirdly, the EAT had been wrong to remit the case to the ET for a hearing only on remedy.  That was because, by doing so, the appellant was deprived of the opportunity to show that the treatment was not solely on the ground of Mr Barton’s part-time status and was not less favourable and/or that it was justified.  Also, the remit was in terms which directed the ET to apply reg 8(8) of the PTWR but it had been repealed:  Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 Amendment Regulations 2002 reg 2(b)(i). 

[27]      Turning to the appellant’s central submissions, under reference to section 3(3) and to the MoJ policy document, Mr Napier submitted it was clear that Mr Barton was refused a pension because he was not, in terms of section 3(3) a “full-time clerk”.  As for Mr Howey, the fact that he was, for section 3(3) purposes, regarded as a full-time clerk did not mean that he was or was regarded as a full-time worker.  The PTWR applied to workers and defined who was and was not a full-time worker.  Mr Barton’s claim was brought under the PTWR.  He required to compare the treatment of which he complained to that afforded to a full-time worker within the meaning of the PTWR and the onus had been on him to show that his comparator satisfied the statutory definition.  Mr Barton could not, however, demonstrate that Mr Howey was a full-time worker.  It was wrong to say that in consequence of being granted a pension, Mr Howey was regarded by his employer as a full-time worker;  there was no evidence placed before either tribunal of Mr Howey being regarded by the custom and practice of the appellant as anything more than a part time worker (see:  PTWR reg 2(1)).  Indeed, it would be surprising if there was a custom and practice whereby someone who worked only 70% of full-time hours was regarded as a full-time worker for such indicia of full-time worker status as, for instance, calculation of holiday entitlements, entitlement to overtime, availability for work and suchlike.  The fact that the appellant concluded that Mr Howey worked 70% of the maximum hours available and could therefore pass the stage one threshold showed no more than that he was deemed to be a full-time clerk for pension purposes.  When Mr Barton had applied for a pension, he had been asked to provide evidence to show that he was “full-time within the meaning of the Act” (see ET reasons at paragraph 44) not that he was a full-time worker;  that also accorded with the appellant’s approach being restricted to the question of whether or not in terms of section 3(3), a person was to be regarded as a full-time clerk.  It had nothing to do with worker status.

[28]      Separately, Mr Napier turned to the issue of whether or not Mr Barton had presented a relevant case of less favourable treatment for the purposes of PTWR.  First, it was important to note that when Mr Barton was refused a pension, it was because he did not fulfil the requirements of section 3(3) not because he was a part-time worker;  whether the approach in McMenemy v Capita Business Services Ltd or in Carl v University of Sheffield [2009] ICR 1286 was applied, it could not be concluded, at this stage, that the requisite causal connection would be established.  Secondly, if he was refused a pension because he was a part-time worker, the most that he could in fact complain of was the failure of the appellant to make employers’ contributions to a pension for him for about one year.  The PTWR came into effect in 2000;  only service after that date could, conceivably, be relevant:  O’Brien v Ministry of Justice [2015] EWCA Civ 1000.  Mr Howey retired about one year later.  Mr Howey could not be a valid comparator thereafter because, in terms of reg 2(4) of the PTWR, he ceased being in the same employment as Mr Barton on retiral.  There was no continuing act.  The EAT had erred in saying, at paragraph 24, that “less favourable treatment was applied to the claimant throughout his period of work with the appellant”.  However, in fact, whilst the policy was in place when the PTWR came into force, Mr Barton received no “less favourable treatment” until he was refused a pension, in 2009.  By then, Mr Howey could not be a relevant comparator as he had long since retired.  However one looked at it, Mr Barton could not demonstrate that he had a relevant claim.

 

Decision

[29]      Mr Barton claims that, contrary to reg 5(1) of the PTWR, he has been treated less favourably than the appellant treated Mr Howey in relation to pension rights.  His claim cannot succeed unless Mr Howey is or was a “worker” (reg 1(2)), unless he was a “comparable full-time worker” (reg 2), unless Mr Barton received the less favourable treatment complained of on the ground that he was a part-time worker (reg 5(2)(a), and unless the treatment was not justified on objective grounds (reg 5(2)(b)).  

[30]      It is, we consider, more convenient to deal with the issues in this appeal, in reverse order.  

 

Whether Mr Howey is or was a comparable full-time worker

[31]      The PTWR defines “worker”, “full-time worker” and “comparable full-time worker”.  Mr Howey was clearly a worker but was it established that he was a “full-time worker”?  We are satisfied that it was not.  The onus was, we accept, on Mr Barton.  Mr Howey did not work full-time.  He worked for 70% of the maximum hours potentially available.  The starting point is, therefore, that Mr Howey was a part-time worker.  For the proposition that Mr Howey was in fact a full-time worker, Mr Barton – and the EAT - relied solely on the fact that Mr Howey had passed the stage one threshold in the MoJ policy and, having done so, was treated for the purposes of section 3(3) of the 1970 Act as a full-time clerk.  We cannot accept that that sole fact demonstrates that “having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract” he was “identifiable as a full- time worker” (reg 2(1)).  The custom and practice of an employer is a question of fact.  Relevant evidence that is accepted as being credible and reliable or agreement as to relevant fact is required before it can be established.  There was, however, neither evidence before nor any finding in fact made by the ET of Mr Howey’s employment bearing any indicia of full-time worker status, whether those alluded to by Mr Napier or otherwise. 

[32]      Nor, on the facts found, were there any words or conduct by or on behalf of the appellant which showed that the appellant regarded the applicability of the MoJ policy to depend on whether a clerk could show that he was a full-time worker.  On the contrary, in the correspondence between the MoJ and Mr Barton that was relied on, the issue being addressed did not relate to Mr Barton’s status as a worker; the sole issue was whether Mr Barton could bring himself within the terms of section 3(3) of the 1970 Act, namely whether he could show that his hours were such as to enable him to be treated as if he had been a full-time clerk.  70% of the maximum hours available would have been sufficient for the stage one threshold to be passed.  We agree with Mr Napier that passage through that threshold was not, however, of itself indicative of the individual concerned having lost his part-time worker status.  Mr Howey did not become a full-time worker. His part-time worker status was, we agree, unaffected by the policy and unaffected by the implementation of the policy in his favour. He remained a part – time worker. As observed by Judge Macleod, the PTWR do not provide protection for workers against less favourable treatment when compared to part- time  workers who are not full-time but work longer hours than they do.  That, however, is what Mr Barton seeks to do.

 

Whether Mr Barton was entitled to pass the stage one threshold in the MoJ policy?

[33]      As we read the judgment of the EAT, it was by application of the Marleasing principle that Lady Stacey concluded that Mr Barton had been entitled to pass the stage one threshold.  It is unfortunate that the appellant was not given the opportunity to address the issue of the applicability of that principle since the outcome could have been different had she heard the submissions which Mr Napier outlined as being those which he would have made. 

[34]      We refer to our discussion of the principle in paragraphs [18] to [21] above.  The EAT applied it not to the regulations under which Mr Barton’s claim was brought but to the statutory provision by reason of which his pension application was refused, the need to do so being seen as arising because to grant the possibility of a pension to a full-time worker but deny that possibility to a part-time worker was discriminatory (EAT at paragraph 22); section 3(3) of the 1970 Act accordingly required to be read down.  We do not agree.  First, whilst we do not take issue with the proposition that a statutory provision which plainly flies in the face of the protection afforded by the PTWR could be regarded as discriminatory, we do not accept that section 3 (3) does that.  It does not provide for different treatment to be afforded to full-time and part-time workers.  It is not concerned with “workers”; it is only concerned with clerks and provides for the possibility of a pension being granted to a limited category of part-time clerks.  Secondly, the redraft of the statutory provisions which the proposed reading down would produce is so radical that it would wholly undermine the clear intention of Parliament which was to enable pensions to be paid only to those clerks who in fact worked full-time (of which there were, we understood, few, if any) or, to those who were part-time clerks but carried out their duties to such an extent that it would be reasonable to treat them as though they were full-time ones.  The rewriting involved in the EAT’s approach would, we consider, be so fundamental and would distort a piece of primary domestic legislation that it would not be an appropriate application of the Marleasing principle.  As indicated in the discussions of that principle in the authorities to which we refer above, there are limits to what can be done by the court to amend the expressed will of Parliament as set out in its legislation and care has to be taken to ensure that the court does not legislate under the guise of reading down.  The court would, however, be doing just that if the references to “full-time” in sec 3(3) of the 1970 were to be deleted.

 

The extent of Mr Barton’s claim, Ministry of Justice v O’Brien and the nature of the remit to the ET

[35]      We also accept that even if Mr Howey had been a valid comparator, Mr Barton’s claim would have been limited to the period between the coming into force of the PTWR and his retiral and restricted to the value of employers’ contributions that would have been paid during that period, had he been entitled to a pension. We do so for the reasons advanced by Mr Napier and also because we agree with Judge Macleod’s conclusion that on a proper interpretation of reg 1(2) and 2(4) of the PTWR, Mr Howey would have ceased to be a relevant comparator on retiral; comparability clearly depends on relevant contemporaneous employment.

[36]      As regards the other preliminary matters raised by Mr Napier, first, we agree that the decision of the UK Supreme Court in Ministry of Justice v O’Brien does not assist Mr Barton; the issues were different ones, as Mr Napier submitted.  Secondly, we agree that even if  Mr Howey was a valid comparator, the remit to the ET ought not to have been restricted to remedy or on the basis that reg 8(8) – which had been repealed - applied.  Importantly, the issues of whether or not Mr Barton had in fact received less favourable treatment on the ground that he was a part-time worker, what that less favourable treatment amounted to and whether or not any such treatment was justified on objective grounds, would all remain to have been determined and ought not to have been prejudged which was the practical effect of the restricted remit.

 

Decision
[37]      In these circumstances, we will uphold the appeal and dismiss this claim.