Have you worked part-time for the Ministry of Justice?
If you have ever undertaken fee paying part-time work for the Ministry of Justice, the following information will be of importance to you.
BMA members should contact our team of advisers on 0300 123 1233 or our Pensions team for more information.
Potential breach of regulations
Early in 2014 the Supreme Court announced its decision in the case of O'Brien in which it was held that the denial of a pension for fee paid (part-time) judges amounted to a breach of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
This was on the basis that it was less favourable treatment compared to full time salaried judges who were allowed to join the pension scheme and the difference in treatment could not be objectively justified.
There are a number of doctors who are potentially in the same situation as Mr O'Brien. These are the fee paid doctors who sit in Tribunals in the Social Entitlement Chamber as they are also denied access to a pension, in contrast to their full-time salaried colleagues who are allowed to join.
Browne Jacobson solicitors (who represented Mr O'Brien) are dealing with another class action which includes some doctors*.
At the stage the BMA became involved, Browne Jacobson were already some way down the line in terms of the class action and had agreed with the MOJ a lead case to be a representative of the doctors affected, being an individual who sits in the Social Security and Child Support Entitlement Tribunal, part of the Social Entitlement Chamber.
How this affects you
The BMA has obtained a legal opinion confirming that BMA members were in the same position as the lead Claimant.
As such the decision was taken that, unless there were limitation issues for any of the BMA members, we would hold off issuing claims for them as they would only be stayed pending the outcome of the lead case and ultimately, the decision that was reached in the lead case would be applicable to the BMA members whatever the outcome.
There was a preliminary Employment Tribunal hearing in late 2013 to determine whether there was an appropriate full-time comparator and, secondly, whether the MoJ had any objective justification for not allowing part time members to join the pension scheme.
It was conceded by the MoJ that fee paid members were workers for the purpose of the Part-Time Worker Regulations and this issue was therefore no longer in dispute.
The key question at the hearing was whether the full-time comparators were carrying out a large amount of additional duties in comparison to the fee paid members. The comparators also carry out a lot of other managerial responsibilities and the MoJ argued that this distinguished the comparator's roles from that of the lead Claimant.
Unfortunately, the Judge concluded that the lead Claimant's work was not the same as or broadly similar to that of their comparators and the claims therefore failed and were dismissed.
What happens now?
Since then we have obtained Counsel's opinion on the prospects of appealing against the Judgment and on the basis of that decided to proceed.
The grounds of appeal were submitted on 24 December 2013 and the case will now proceed to a full hearing in the next 6 months.
What you can do
Members who are potentially affected should be aware that the time limit for submitting a claim is 3 months from the date when the fee paid appointment ends (whether it ends because the contract ends or the member moves from a fee paid to a salaried appointment).
The MoJ did issue a moratorium in April 2013 which may be of some assistance in extending the time limit in some circumstances, depending on when the appointment ended.
If you would like the BMA to represent you in this matter, please contact our team of advisers on 0300 123 1233.
* If you are already being represented by Browne Jacobson solicitors (or any other party) then the BMA will not be able to represent you.