Milroy v MoD: Tribunal Ruling Could Grant Army Pensions to Thousands of Reservists
A Scottish Employment Tribunal has found that the MoD’s failure to allow army reservists to join the same pension scheme as full-time regular soldiers was contrary to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Regulations) as discriminatory against part-time workers, despite the bulk of reservist’s duties being voluntary and despite the Regulations expressly excluding them from protection.
The Tribunal found that the Regulations were contrary to the Part Time Workers Directive (EU law upon which the Regulations were based) and the exclusion of reservists from the pension scheme was by reason of their part-time status and could not be objectively justified. As such, the exclusion of reservists from the regulars’ pension scheme was discriminatory.
A difference in calculating pay and holiday pay, as between regular soldiers and reservists, was also found to be discriminatory.
Details
A retired major, Charles Milroy, has won a significant case against the Ministry of Defence (MoD), potentially paving the way for thousands of reservists to receive military pensions for the first time. Milroy, who served over 37 years in the Territorial Army (TA), including a tour in Iraq, took the MoD to a tribunal, claiming that he should have been enrolled in a military pension scheme for his service from 1982 to 2015.
Maj Milroy’s case was heard at an employment tribunal in Glasgow, where he argued that his extensive service and work days warranted a pension. The TA was formed in 1907 to provide a national reserve for service at home and overseas, before its 2012 name change to Army Reserve. The MoD had previously denied pensions to TA soldiers, arguing it was “administratively burdensome and extremely expensive” to provide pensions to all reservists, as they typically do not serve long enough or work enough days each year to justify a pension. However, in 2015, the MoD revised its Armed Forces Pension Scheme (AFPS 75) to allow TA soldiers a full pension.
Judge Eccles found that denying all reservists access to the pension “in circumstances where a relatively small number of reservists would qualify for a pension was disproportionate”. The tribunal found that the MoD’s calculation method, which treated reservists less favourably compared to full-time soldiers, was unjust. The tribunal highlighted that the MoD’s justification for exclusion was insufficient, noting that the administrative costs were comparatively small relative to the pensions reservists might receive. Judge Eccles also emphasised that reservists’ work was not materially different from that of regular soldiers, making the MoD’s treatment of Milroy less favourable as a part-time worker.
Posting on social media before his case, Maj Milroy wrote: “This case is a bit like David versus Goliath with an individual taking on such a large organisation…I am the test case. If I am successful, other TA soldiers will be able to make similar claims, and for some of them this may be life-changing”.
Following the ruling, Milroy is set to receive a pension of around £7,300 per annum. The decision could be considered as landmark, with the knock on effect to potentially extend pension rights to many other reservists.
Major C Milroy v Advocate-General for Scotland: 4103202/2020
Date of judgment: 5 August 2024
