By 2017 Dermod O’Brien had established that his fee-paid work as a recorder entitled him to a pro rata judicial pension. Its value still depended on a date. Would the calculation count service going back to 1978, or only the years after the United Kingdom was required to implement the Part-Time Work Directive?
Mr O’Brien served as a recorder from 1 March 1978 until he retired at 65 on 31 March 2005. Recorders were paid daily fees. Unlike full-time judges and salaried part-time judges, they did not hold a qualifying judicial office under the Judicial Pensions Act 1981 or the Judicial Pensions and Retirement Act 1993, and no judicial pension was payable to them. Pensions under those Acts were, at the material time, non-contributory and were calculated by reference to final salary and length of service in qualifying office.
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In June 2005 he asked the Ministry of Justice for a retirement pension on the same basis, adjusted pro rata temporis, as that paid to former full-time judges who had done the same or similar work. The Ministry said that he fell outside the judicial offices to which a pension was payable. He began Employment Tribunal proceedings, relying on Council Directive 97/81/EC concerning the Framework Agreement on part-time work, as extended to the United Kingdom by Council Directive 98/23/EC, and on the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Those Regulations, in force from 1 July 2000, gave part-time workers a right not to be treated less favourably than comparable full-time workers, applying the pro rata principle unless inappropriate, but they expressly excluded fee-paid part-time judges.
The earlier rulings
In 2010 the Supreme Court referred questions to the Court of Justice. In 2012 the Court of Justice held that member states define who is a worker for the Framework Agreement, but may not arbitrarily exclude judges, and that an exclusion is permissible only if the relationship is by its nature substantially different from that between employers and employees. It also held that the Framework Agreement precludes a distinction, for access to the retirement pension scheme, between full-time judges and part-time judges paid a daily fee, unless the difference is justified by objective reasons. The Supreme Court then held that Mr O’Brien was a part-time worker and that no objective justification had been shown. He was therefore entitled to a pension on terms equivalent to those of a circuit judge, adjusted pro rata temporis.
The case was remitted to fix the amount. The issue was whether the calculation should use the whole of his service from 1 March 1978, a period of 27 years, or only service after the transposition deadline expired, a period of less than five years. The Employment Tribunal took account of the whole period. The Employment Appeal Tribunal held the contrary, and the Court of Appeal agreed. Mr O’Brien appealed.
Why the period of service remained in dispute
The appeal concerned the temporal scope of the Directive and the EU principle that legislation is not retroactive. A new rule applies from its entry into force to the future effects of a situation which arose under the old law, and to new situations, but not to legal situations that arose and became definitive under the old law, unless the measure contains special provisions on its temporal application. In Bruno the Court of Justice applied that approach and held that the calculation of the period of service required to qualify for a retirement pension was governed by the Directive, including employment before the Directive entered into force. In the earlier O’Brien reference the Court of Justice relied on Bruno when rejecting an argument that the reference was inadmissible because it concerned facts before the Directive entered into force in the United Kingdom.
The pension cases also described occupational pensions as deferred pay earned during service. Ten Oever concerned a special time limit on the equal-pay ruling in Barber. The Ministry relied on the idea of deferred pay to argue that a later rule could not give Mr O’Brien benefits he had not earned under the law then in force.
Mr O’Brien argued that Bruno, and the Court of Justice’s reliance on it in the earlier reference, meant that pre-Directive service counts not only towards qualification but also towards quantification where the pension depends on length of service. The Ministry argued that, because an occupational pension is deferred pay for past work and the entitlement accrues when the work is done, non-retroactivity fixed his non-entitlement for his first 22 years of service before the Directive entered into force. The final date for transposition was 7 April 2000. The disagreement was therefore whether pension rights for service before that date were a situation which had arisen and become definitive under the old law, or were future effects of an earlier situation to which the Directive applied.
Why the Supreme Court referred the question
A majority were inclined to count the earlier service. On that view, the relevant event was the pension falling due after the Directive took effect. Earlier service would supply figures for calculating the new entitlement. But the Court of Justice had not resolved the Ministry’s argument about deferred pay in this context. The Supreme Court therefore concluded that EU law did not provide a sufficiently clear answer for it to decide the appeal itself.
The Supreme Court therefore referred this question:
Does Directive 97/81, and in particular clause 4 of the Framework Agreement annexed thereto concerning the principle of non-discrimination, require 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, if they would be taken into account when calculating the pension of a comparable full-time worker?
The later decision in Miller v Ministry of Justice [2019] UKSC 60 considered when the time limit for a fee-paid judge’s pension claim began.
In the same day’s decision in Walker v Innospec [2017] UKSC 47, the Court decided whether a surviving spouse could be denied a full pension because of when the member had worked.
Verdict: The Supreme Court unanimously referred the question to the Court of Justice of the European Union. The 2017 judgment did not decide how many years of Mr O’Brien’s service had to be counted.
