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John Vander Luit

Editor, Solicitors Journal

Part-time judge's claim for judicial pension dismissed as out of time

Part-time judge's claim for judicial pension dismissed as out of time


Employment tribunal rejects retired fee-paid judge's application for extension of time on fair and equitable grounds

A retired part-time judge has lost a tribunal claim for a pension after complaining that she had not been treated as favourably as full-time judges.

Val Garston who left the judiciary in 2009 at the compulsory retirement age of 70 has been told that her legal claim at London Central Employment Tribunal was made nearly four years too late.

Employment tribunal applications under the part-time workers regulations must be made within three months of the less favourable treatment complained of and an extension of time is only granted in exceptional circumstances.

Mrs Garston who was born in 1939, was in practice as a family law solicitor before becoming a fee-paid first tier judge on a part time basis in 1995.

She complained that during her service as a fee-paid first tier (social entitlement chamber) and its predecessors, she was excluded from the right to a judicial pension.

She further complained that her salaried full-time colleagues were entitled to a pension and that in other respects, the terms of her appointment were less favourable because of her part-time status.

Tribunal judge MacMillan considered Garston's application for an extension of time so her hearing about her pension claim could go ahead.

'Given the length of her appointment and the frequency of her sittings, any pension that she would receive if these proceedings were successful would be substantial,' the judge said.

However, the judge noted it was not until 2011 that Garston took legal advice about making her application and that she did not commence proceedings until 26 March 2013.

'This was 12 days of being just under four years too late,' said the judge. 'I accept that Mrs Garston has no knowledge of employment law but as a practicing solicitor and member of the judiciary, she must have been aware both of the concept of time limits and the strictness with which they are applied in normal circumstances.'

According to the ruling, Garston had been depressed on retirement after losing her only source of income and had also experienced trouble with her eyesight.

'I accept, of course, that she will suffer significant prejudice through losing a pension. I regret there is nothing in her explanation about the reason for the long delay for the application.'

Garston brought her claim following the Supreme Court ruling in O'Brien, a part-time recorder who secured a right to a pension after bringing a claim for less favourable treatment.

Employment judge McMillan, who was involved in the O'Brien litigation, pointed out that a number of claims brought in the wake of the O'Brien ruling had been stayed pending yet another decision by the Supreme Court on the time limit issue.

However, he said, Garston's case '“ along with a number of others seeking an extension of time on a 'fair and equitable' basis '“ did not fall within the category of cases affected by this latest litigation.

Garston had been aware of the O'Brien litigation and, much as she had undoubtedly suffered a prejudice, he concluded, this was 'clearly outweighed by the considerable length of the delay in bringing the proceedings'.

Peter Swingler is a freelance reporter