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Part-time judges entitled to backdate judicial pensions

12 November 2018

Mr O’Brien, a part-time judge, was not eligible to receive a judicial pension on retirement. In 2005 he brought a claim in the Employment Tribunal, under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. In February 2013, the Supreme Court held that Mr O’Brien was entitled to a retirement pension on terms equivalent to a full-time judge. However, there was still a question as to whether the years served by Mr O’Brien prior to the introduction of the Regulations should be included when calculating his pension.

The Ministry of Justice argued that Mr O’Brien should only be entitled to count those years of service that arose after the introduction of the Regulations. This question was ultimately referred to the ECJ, who agreed with Mr O’Brien that his service from the beginning of his appointment (1 March 1978) should be counted, in accordance with 'the future effects principle'.

The European Court of Justice therefore concluded that the effect of Directive 97/81 is that “periods of service prior to the deadline for transposing that directive must be taken into account for the purpose of calculating the retirement pension entitlement.”

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