On 5 August 2024 an Employment Tribunal found in favour of Major Charles Milroy, judging that by (i) denying the claimant access to the Armed Forces Pension Scheme 1975 and successor schemes and (ii) using a divisor of 365.25 to calculate the claimant’s daily rate of pay, the claimant was treated less favourably as a part-time worker than the respondent treated a comparable full-time worker in terms of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations (PTWR) 2000. The full judgement can be read here.
The MOD submitted an appeal to the Employment Appeal Tribunal (EAT) on the 17 September 2024. We are not aware of the grounds on which that appeal is based, but the Society has taken preliminary legal advice in the context of the Milroy decision.
The complexities and legal nature of the Milroy case, and the subsequent appeal process, preclude the Society from taking any form of group action on behalf of affected Members, so individuals who believe they are, or may be, affected and wish to consider bringing their own claim should seek their own independent legal advice. What follows is the Society’s guidance only and does not (and cannot) constitute legal advice to individual Members or other reservists. Everyone’s circumstances are likely to differ and be bespoke to them, and no individual should rely upon this guidance in deciding whether or not to bring their own legal proceedings.
There is a 6-month time limit under PTWR regulations for reservists to lodge an Employment Tribunal claim in relation to their service as a member of the Armed Forces. In relation to pension specifically, individuals can claim during employment that their terms are less favourable, or that the failure to make a pension available at the point of retirement is less favourable treatment. The 6 months’ time limit runs, at the latest, from the point of retirement / date you can receive your pension. It is not always going to be straight-forward to identify when this date is. It will be different for AFPS 75 and AFPS 05 and will depend upon the circumstances of the individual. So, some may wish to act now to take independent legal advice on whether to bring a claim to protect their interests and avoid exceeding the 6 month limit from an unknown date. Details on how to submit a service complaint can be found at: https://www.gov.uk/guidance/armed-forces-service-complaints-process
PTWR regulations require the submission of a Service Complaint before an Employment Tribunal claim can be made. Note that complaint only has to be submitted, and not withdrawn. It does not need to be adjudicated before the Tribunal claim can be presented.
Once a Service Complaint has been submitted the next step (and preliminary requirement) is to comply with the ACAS Early Conciliation (‘EC’) process. The EC process is online at https://www.acas.org.uk/notify/wizard/individual/form and the Respondent is The Ministry of Defence Main Building Whitehall London SW1A 2HB. ACAS will ask you if you want to try early conciliation and this will need to be a matter for you individually. At the end of the EC process (which is up to 6 weeks) an EC certificate will be issued by ACAS, assuming that no settlement has been reached. Whilst the EC process is ongoing it effectively ‘stops the clock’ running on the 6-month time limit for lodging a claim.
Once your receive the certificate you then need to submit an Employment Tribunal (ET1) Claim Form (within the appropriate time limit that then applies following the EC process) which can be found at https://assets.publishing.service.gov.uk/media/65bcbd214a666f000d1747ba/ET1_0224.pdf
The Society must stress that it cannot advise individual members on the wording of their claim.
Employment Tribunal claims are free (i.e. there is no fee payable to bring one) and it is likely that any claims brought will be stayed (or sisted in Scotland) while the MOD’s appeal in the Milroy case is considered. This process could take several years. The general rule in Employment Tribunal proceedings is that you will not have to pay the other side’s legal costs if you lose, but Tribunals do have the power to award legal costs in certain circumstances, such as when a party behaves unreasonably or when a claim had no prospect of success.
The Society remains engaged and will keep you updated.
