O'Brien v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lady Hale,Lord Kerr,Lord Carnwath,Lord Hughes |
| Judgment Date | 12 July 2017 |
| Neutral Citation | [2017] UKSC 46 |
| Court | Supreme Court |
[2017] UKSC 46
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Carnwath
Lord Hughes
Appellant
Robin Allen QC
Rachel Crasnow QC
Tamar Burton
(Instructed by Browne Jacobson LLP)
Respondent
John Cavanagh QC
Charles Bourne QC
Rachel Kamm
(Instructed by The Government Legal Department)
Heard on 7 July 2016, 8 and 9 March 2017
( with whom Lady Hale, Lord Kerr, Lord Carnwath and Lord Hughes agree)
This appeal raises a question relating to the temporal scope of Council Directive 97/81/EC of 15 December 1997, 1998 OJ L14/9, concerning the Framework Agreement on part-time work ("the directive") as extended to the United Kingdom by Council Directive 98/23/EC of 7 April 1998, 1998 OJ L131/10, and the general principles of EU law governing the non-retroactivity of legislation.
The question arises in the context of proceedings between Mr Dermod O'Brien QC and the Ministry of Justice concerning the pension to which Mr O'Brien is entitled by reason of his part-time service in a judicial office.
In essence, the question is whether, where a part-time worker retires after the entry into force of the directive and is entitled under the directive, taken together with national law, to an occupational pension based on his length of service, periods of service which were completed before the directive entered into force should be taken into account.
The material facts are as follows. Mr O'Brien is a retired self-employed barrister who also held part-time judicial office as a recorder (a part-time judge of the Crown Court) between 1 March 1978 and 31 March 2005, when he retired at the age of 65. Recorders were not salaried but were paid fees on a per diem basis. There was no provision for the payment of a judicial pension on retirement.
In June 2005 Mr O'Brien wrote to the Ministry, requiring that he be paid a retirement pension on the same basis, adjusted pro rata temporis, as that paid to former full-time judges who had been engaged on the same or similar work. He was informed by the Ministry that he fell outside the categories of judicial office-holder to whom a judicial pension was payable. In September 2005 he began proceedings in the Employment Tribunal, in which he claimed that he was entitled to a judicial pension by virtue of the directive and the regulations transposing it into domestic law.
On 28 July 2010 the Supreme Court referred two questions to the Court of Justice for a preliminary ruling under article 267 TFEU:
"(1) Is it for national law to determine whether or not judges as a whole are 'workers who have an employment contract or employment relationship' within the meaning of clause 2.1 of the Framework Agreement, or is there a Community norm by which this matter must be determined?
(2) If judges as a whole are workers who have an employment contract or employment relationship within the meaning of clause 2.1 of the Framework Agreement, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?"
On 1 March 2012 the Second Chamber of the Court of Justice, having received the opinion of the Advocate General (Kokott) on 17 November 2011, gave judgment: O'Brien (Case C-393/10) [2012] 2 CMLR 25. It answered the questions as follows:
"(1) European Union law must be interpreted as meaning that it is for the member states to define the concept of 'workers who have an employment contract or an employment relationship' in clause 2.1 of the Framework Agreement … and in particular, to determine whether judges fall within that concept, subject to the condition that that does not lead to the arbitrary exclusion of that category of persons from the protection offered by Directive 97/81, as amended by Directive 98/23, and that agreement. An exclusion from that protection may be allowed only if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers.
(2) The Framework Agreement … must be interpreted as meaning that it precludes, for the purpose of access to the retirement pension scheme, national law from establishing a distinction between full-time judges and part-time judges remunerated on a daily fee-paid basis, unless such a difference in treatment is justified by objective reasons, which is a matter for the referring court to determine."
Following that ruling, the Supreme Court held that Mr O'Brien was at the material time a part-time worker within the meaning of clause 2.1 of the Framework Agreement, and that no objective justification had been shown for departing from the principle of remunerating fee-paid part-time judges on the same basis as full-time judges, subject to adjustment pro rata temporis. Mr O'Brien was therefore entitled to a pension on terms equivalent to a circuit judge (a comparable full-time judge): [2013] UKSC 6; [2013] 1 WLR 522.
The case was remitted to the Employment Tribunal for determination of the amount of the pension to which Mr O'Brien was entitled. The question which then arose was whether, in calculating the amount of his pension, account should be taken of the whole of his service since the beginning of his appointment on 1 March 1978 (a period of 27 years), or only his service since the deadline for transposing the directive expired (a period of less than five years). The Employment Tribunal held that the calculation should take into account the whole of his service, but the Employment Appeal Tribunal held the contrary: [2014] ICR 773. The Court of Appeal upheld the decision of the Employment Appeal Tribunal: [2015] EWCA Civ 1000; [2016] 1 CMLR 28. Mr O'Brien now appeals to the Supreme Court.
Domestic legislation provides for the payment of judicial pensions under two statutes, the Judicial Pensions Act 1981 and the Judicial Pensions and Retirement Act 1993. The 1981 Act applies to persons appointed prior to 31 March 1995, unless they elect to have their pension paid under the 1993 Act. The 1993 Act applies to persons appointed on or after 31 March 1995. Under the Acts, a pension is payable to any person retiring from "qualifying judicial office", subject to their having attained the age of 65 and, under the 1993 Act, subject also to their having completed at least five years' service in such office. At the material time, full-time judges and...
To continue reading
Request your trial
-
Walker v Innospec Ltd and Others
...that Mr Walker's appeal should be allowed, but on more limited grounds. This appeal was heard at the same time as the appeal in O'Brien v Ministry of Justice [2017] UKSC 46, in which the court has decided to refer to the European court a question relating to the pension entitlement of part......
-
Miller and Others v Ministry of Justice
...in the related case of O'Brien v Ministry of Justice (see below). The statutory framework 4 In Ministry of Justice v O'Brien (No 2) [2017] UKSC 46; [2017] ICR 1101, para 10, Lord Reed summarised the domestic legislation governing judicial pensions: “Domestic legislation provides for the pa......
-
Mr G F Bowden v 1) Ministry of Justice 2) Department for Communities and Local Government
...the pension entitlement of a part-time Judge. That question has been referred to the European Court: see O’Brien v Ministry of Justice [2017] UKSC 46. D The Claimant’s Case The Claimant was born in August 1935. In June 1994 at the age of 58 he became a part- time legal chairman of the Resid......
-
Mr P Roddis v Sheffield Hallam University
...Towns Fire Authority [2006] ICR 365 HL, Wippel v Peek & Cloppenburg GmbH & Co KG [2005] IRLR 211 ECJ; O’Brien v Ministry of Justice [2017] UKSC 46. UKEAT/0299/17/DM Where a worker and his or her comparator are both employed under contracts that answer to the same description given in the ......