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CJEU rules in favour of part-time judge in long-running pensions case

7 November 2018

Today (7 November) the Court of Justice of the European Union handed down judgment in the case of O’Brien on whether or not years pre-2000 count for the purposes of calculating pension benefits for part-time workers.

In handing down its judgment, the Court of Justice found that European Directive 97/81 requires that periods of service prior to the deadline for transposing the Directive should be taken into account when calculating the amount of the retirement pension of a part-time worker, just as they would be taken into account when calculating the pension of a comparable full-time worker.

Caroline Jones, solicitor at law firm Browne Jacobson acting on behalf of Dermod O’Brien, said:

“Mr O’Brien is delighted that parity has finally been achieved for part-time workers with pre-2000 service. This judgment means that the value of pensions for those appointed pre-2000 could be very significant depending on the length of their pre-2000 service.”

Dermod O’Brien, added:

“It has been a hard slog over 13 years to overcome this particular aspect of unlawful discrimination and I am immensely grateful to counsel and to Browne Jacobson for their skilful support in seeing it through to a successful conclusion. Having retired from my recordership at 65 it is a relief to expect to reach finality before I reach 80.”

This judgment hails the end of the long-running claim by Mr O’Brien, in which it was successfully argued that he should not be excluded from the judicial pension scheme on the basis that he was a part-time judge. In February 2013, after an 8-year court battle with the Ministry of Justice, the Supreme Court ruled that Recorders (who are fee-paid judges) are entitled to a judicial pension and the Ministry of Justice’s denial of a pension to them breached the legislation on part-time workers. The case was referred back to the Employment Tribunal to determine the amount of the pension.

At that point the MoJ came up with a new argument not previously raised. Mr O’Brien argued successfully at the tribunal that he was entitled to have his service prior to 7 April 2000 taken into account in calculating the amount of his pension. However, the Court of Appeal agreed with the Employment Appeal Tribunal that the right to a pension payment is regarded as accruing at the time it is earned (i.e. when the work was done), even though no right to payment could arise until retirement.

Mr O’Brien appealed to the Supreme Court. The majority of the Supreme Court was not minded to agree with the Court of Appeal. However, the Supreme Court concluded that, as the point was not sufficiently clear cut, a reference should be made to the ECJ. 

The impact of the ECJ’s judgment is significant. In Mr O’Brien’s case he was appointed as a Recorder on 1 March 1978, an office he held until 31 March 2005. As such, on the basis of “the future effects principle” he is now entitled to a pension taking into account his 27 years’ service, as opposed to a period of less than 5 years.

The judgment will also be welcomed by the many part-time judges who were subsequently appointed full-time salaried members of the judiciary. To date, these judges have been denied a pension in respect of their fee-paid service on the basis that time runs from the ending of each paid appointment about which a complaint is made, irrespective of whether they transferred into a salaried appointment.

In a separate appeal to the Supreme Court, the Miller appellants contended that their claims were not made out of time on the basis that the less favourable treatment continues up to and including the point of retirement. The Supreme Court decided that the judgment in the Miller appeal must await the outcome of the reference in O’Brien. 

Mr O’Brien was represented by Robin Allen QC, Rachel Crasnow QC and Tamar Burton of Cloisters instructed by Caroline Jones and Tim Johnson at Browne Jacobson.

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