The former President of the Pensions Appeal Tribunal for Scotland has had his claim for a pension from the Scottish Government for himself rejected by an employment tribunal. Colin McEachran QC, who sat on the Tribunal between 1995 and 2013, used the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 to claim that he had been treated less favourably than other, full time judicial office-holders who have entitlements to pensions.
The retired QC claimed that when he was engaged as President of the Tribunal the work he was performing was the same as or broadly similar to the work of Lord McGhie, Chairman of the Scottish Land Court and President of the Scottish Lands Tribunal and that of John Wright QC, full-time Legal Member of the Lands Tribunal and thus their positions were comparable. The comparators are entitled to a judicial pension under the Judicial Pensions and Retirement Act 1993 but the claimant, who was represented by Douglas Fairley QC of Westwater Advocates, was only paid a daily rate for the days he was occupied on Pensions Appeal Tribunal business and has no pension entitlement. But in a 66-page judgment issued on Friday [2 August 2019] the Tribunal rejected the claim.
Employment Judge Laura Doherty concluded that although there were similarities in the work involved in that they exercised judicial skills in the conduct of the work, and they all had similar qualifications, they were skilled in different areas of the law and the work they performed required them to use those different skills. On the basis of the extensive differences in procedure, the claimant and his comparators sat on different kinds of hearings, issued judgments on entirely different subject matters and conducted different types of case management. The work of the claimant and his comparators were therefore not the “same or broadly similar” in terms of the Regulations.
The Scottish Minsters, who were represented by Calum MacNeill QC and Alice Stobart, both also of Westwater Advocates, instructed by Anderson Strathern, advanced two alternative positions which were rejected. Although Lord McGhie held two separate appointments, he was considered by the Tribunal to be a “full-time worker” for the purposes of the regulations and not the holder of two part-time posts. A fallback defence of “objective justification” based on the fact that the UK Government sets rates of pay and pension for the comparators whereas the Scottish Ministers have responsibility for setting the remuneration of the President of the Pensions Appeal Tribunal was also rejected.