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Cloisters team in European Court for part-time workers pension case


Robin Allen QCRachel Crasnow QC and Tamar Burton will appear in the Court of Justice of the European Union today in the case of O’Brien.

The case concerns discrimination against O'Brien, a part-time judge in the calculation of his pension. The issue is whether periods of service as a part-time judge prior the coming into effect of Part Time Workers Directive (97/81/EC) should be taken into account in calculating the amount of pension to be paid upon retirement.

Mr O’Brien was appointed as a Recorder sitting part-time on the Western Circuit on 1 March 1978, an office he held until 31 March 2005. He is entitled to a pension by virtue of the Part Time Workers Directive, which the United Kingdom was required to transpose into domestic law by 7 April 2000, following the Supreme Court’s previous decision in 2012: see Department of Constitutional Affairs v O'Brien [2013] I.C.R. 499.

When the case was remitted to the employment tribunal Mr O’Brien, alongside other part-time judges, contended that he was entitled to have his service prior to 7 April 2000 taken into account in the calculation of the amount of his pension. He relied on the concept of European law known as “the future effects principle”; namely that “new rules apply, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the old rule” as set out in the joined cases of Istituto Nazionale della Previdenza Sociale v Bruno & Pettini C-395/08 and C-396/08 [2010] ECR I-5199.

The Ministry of Justice accepted that his pre-2000 service was relevant for the issue of qualification for a pension but not quantification of a pension. For Mr O’Brien the difference between these competing submissions is a period of 27 years or a period of less than five years.

The Employment Tribunal issued a decision in Mr O’Brien’s favour on this issue; on appeal, the Employment Appeal Tribunal allowed the Ministry of Justice’s appeal; and the Court of Appeal agreed with the Employment Appeal Tribunal and dismissed Mr O’Brien’s appeal. The Supreme Court indicated that the majority of the Court accept the Appellants’ submission that it is unlawful to discriminate against part-time workers when a pension falls due for payment, but referred the case to the Court of Justice of the European Union. The full judgement from the Supreme court can be found here.

The case will be heard in the Court of Justice of the European Union today. Check back on this page for updates. 

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