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Pensions: Part Time Workers & Comparators

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Was it an error of law for a tribunal to adopt 'wholesale' the Respondent's submissions in its judgment in this part-time pension case?

No, held the EAT in Dr Parker v MDU Services Ltd.

The EAT held the "degree of copying and pasting" of the Respondent's submissions, from Andrew Short QC, into the tribunal judgment "was extraordinary". However, although the approach was unsatisfactory, it did not fatally undermine the decision.

Dr Parker claimed that her employer's pension scheme indirectly discriminated against workers with a mixture of full-time and part-time service. Dr Parker worked for the employer for 27 years, which equated to 21 years' full time equivalent service. She received, on retirement, 21/27 of the maximum pension available. Dr Parker said that a full time worker with 20 years' service would have retired with the maximum pension, and that was discriminatory. The scheme rules were unusual in that the rate at which the right to a particular pension accrued depended upon the date and age of joining the scheme.

The tribunal, with which the EAT agreed, found the correct comparator would have to have joined the scheme at the same time and age as Dr Parker. That comparator would have accrued pension entitlement at the same rate and there was therefore no discrimination. Dr Parker's comparator ignored "a crucial feature of the scheme", that the accrual rate depended on the age one joins the scheme.

The EAT went on to dismiss Dr Parker's other appeal points, reminding us amongst other things that "an employer is not precluded from relying upon a later justification" of a potentially discriminatory practice if they did not have that in mind at the time the practice was applied.

Thanks to David Leslie of Lyons Davidson for preparing this case summary.