Clerks to the General Commissioners of Income Tax were workers, not employees, and they had no right to any pension. However, under certain provisions of the Taxes Management Act 1970, the Secretary of State for Scotland had a discretionary power to award a pension to a "full-time clerk", as did the Lord Chancellor. Clerks were considered to be full time if they worked as a clerk for at least 70% of a full 5 day week. Mr Howey, the claimant's comparator, worked 70% of a full 5 day week and received a pension on retirement. The claimant worked 50% of a full 5 day week and his application for a pension was refused. He brought a claim to the ET contending that he received less favourable treatment than Mr Howey, contrary to his part-time worker's rights. His claim was rejected on the basis that the claimant had not identified a full time comparator - Mr Howey only worked 70% of a full 5 day week. The PTWR do not provide for the protection of workers against less favourable treatment when compared to workers who are not full-time but work  longer hours than they do. The EAT allowed the claimant's appeal, by applying the Marleasing principle, saying that granting the possibility of a pension to a full-time worker but denying a part-time worker access to that possibility is discriminatory" and that, therefore, "the [1970] Act requires to be read down by omitting the words "full-time"". The respondent appealed.

The court allowed the appeal. The court did not agree that section 3(3) of the 1970 Act accordingly required to be read down. First, whilst the court did not take issue with the proposition that a statutory provision which plainly flies in the face of the protection afforded by the PTWR could be regarded as discriminatory, they did not accept that section 3 (3) does that. It does not provide for different treatment to be afforded to full-time and part-time workers. It is not concerned with "workers"; it is only concerned with clerks and provides for the possibility of a pension being granted to a limited category of part-time clerks. Secondly, the redraft of the statutory provisions which the proposed reading down would produce is so radical that it would wholly undermine the clear intention of Parliament which was to enable pensions to be paid only to those clerks who in fact worked full-time (of which there were, we understood, few, if any) or, to those who were part-time clerks but carried out their duties to such an extent that it would be reasonable to treat them as though they were full-time ones.

Read the full text of the judgment here.