Dermod O'Brien v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Underhill,The Master of the Rolls |
| Judgment Date | 06 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1000 |
| Date | 06 October 2015 |
| Docket Number | Case No: A2/2014/1195 & 1061 |
| Court | Court of Appeal (Civil Division) |
[2015] EWCA Civ 1000
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Sir David Keene
UKEAT 0466/13/LA
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Lewison
and
Lord Justice Underhill
Case No: A2/2014/1195 & 1061
Mr Robin Allen QC & Ms Rachel Crasnow QC (instructed by Browne Jacobson LLP) for the 1 st Appeal Appellant
Mr John Cavanagh QC, Mr Charles Bourne QC & Ms Rachel Kamm (instructed by the Government Legal Department) for the 1 st Appeal Respondent
Mr Martin Chamberlain QC & Mr Max Schaefer (instructed by Liberty) for the 2 nd Appeal Appellant
Mr Nicholas Randall QC & Ms Claire Darwin (instructed by Eversheds LLP) for the 2 nd Appeal Respondent
Mr Jason Coppel QC & Ms Holly Stout (instructed by the Government Legal Department) for the Interested Party in 2 nd Appeal
Hearing dates: 29, 30 June and 1 July 2015
The two appeals
Mr O'Brien QC was appointed as a Recorder sitting part-time on the Western Circuit on 1 March 1978. He held that office until 31 March 2005. He is entitled to a pension by virtue of the Part Time Workers Directive (97/81/EC) ("the PTWD"), which the United Kingdom was required to transpose into domestic law by 7 April 2000. The question on this appeal is whether, in calculating the amount of the pension that he is entitled to receive, the calculation should bring into account Mr O'Brien's sitting days since the beginning of his appointment, or only those that took place after 7 April 2000. The Employment Tribunal (EJ Macmillan) held that the calculation should take into account all Mr O'Brien's sitting days; but the Employment Appeal Tribunal (Sir David Keene) held the contrary. Sir David's decision is at UKEAT/466/13, [2014] ICR 773.
Mr Walker worked for Innospec Ltd from January 1980 until his retirement on 31 March 2003. He was a member of Innospec's pension scheme. Rule 8.1 of the scheme provided:
"If a Member dies on or after 1 December 1999 leaving a surviving spouse that spouse will receive a pension for life."
At the date of his retirement Mr Walker had been living with his male partner since September 1993. The Framework Directive (2000/78/EC) established a general framework for combating discrimination on a number of grounds, including sexual orientation. The United Kingdom was required to transpose that directive into domestic law by 2 December 2003. The Civil Partnership Act 2004 came into force on 5 December 2005; and Mr Walker and his partner registered a civil partnership on 23 January 2006. They have since married. The question on this appeal is whether Mr Walker is entitled to require the pension fund to pay a surviving spouse's pension to his husband in the event that his husband outlives him. The Employment Tribunal (EJ Russell, Ms CS Jammeh and Mr CS Williams) held in his favour but the Employment Appeal Tribunal (Langstaff P, Mr A Harris and Mrs MV McArthur) reversed that decision. Their decision is at UKEAT/232/13, [2014] ICR 645.
In both cases the outcome of the appeal turns on principles of EU law and, in Mr Walker's case, on a provision of domestic legislation.
The relevant principles of EU law
The first two relevant principles of EU law are the "no retroactivity" principle and the "future effects" principle. The first of these principles is that EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected: ( Case C-162/00) Land Nordrhein-Westfalen v Pokrzeptowicz-Meyer [2002] 2 CMLR 1 at [49]. It is common ground that the PTWD is not retroactive in this sense. The second of these principles is that amending legislation applies, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the law as it stood before amendment: ( Case 68/69) Bundesknappschaft v Brock [1970] ECR 171 at [7]; ( Case 270/84) Licata v Economic and Social Committee [1986] ECR 2305 at [31]; Land Nordrhein-Westfalen v Pokrzeptowicz-Meyer at [50]; (Joined Cases C-395/08 and C-396/08) INPS v Bruno [2010] 3 CMLR 45 at [53] (" Bruno and Pettini"). This principle applies only to EU legislation and rules. It does not apply to judge-made law, although there are different techniques by which the Court of Justice is able to avoid practical retroactivity.
The formulation of the future effects principle is to some extent a loose one. Much depends on what is meant by "a situation which arose" under the old law or rule. Fortunately the jurisprudence of the Court of Justice gives answers to that question. The critical point is whether the legal effects of the situation in question have been exhausted before the change in the law. If they have then the situation is described as being "permanently fixed". A rule that applies to a situation that is permanently fixed before the introduction of the new rule would have retroactive effect, whereas the immediate application of the new rule to ongoing situations which were created but not permanently fixed before the change in the rules would not have retroactive effect but is simply an application of the "future effects" principle: ( Case C-321/97) Andersson v Svenska Staten [2000] 3 CMLR 191 at [57] (Cosmas A-G). Another way of expressing the distinction is to contrast (i) definitively established situations on the one hand, and (ii) on-going cases in which legal situations have not yet arisen and become definitive on the other: ( Case C-596/13 P) European Commission v Moravia Gas Storage at [30] (Kokott A-G); ( Case C-60/98) Butterfly Music Crl v CEMED at [25] and footnote 15 (Cosmas A-G).
The question then becomes: when does the situation become permanently fixed or definitively established? In Andersson v Svenska Staten Cosmas A-G gave some helpful examples:
i) A claim by employees for compensation because their former employer had ceased to pay them on becoming insolvent, was held to have been a situation that became permanently fixed on the declaration of insolvency and the termination of the employment.
ii) A claim for compensation arising out of a traffic accident was held to have been a situation that became permanently fixed at the date of the accident.
On the other hand:
i) A new rule affected ongoing legal proceedings, even though they had been begun before the change in the rule.
ii) A change in the law affects the continuing future performance of an ongoing contract of employment ( Land Nordrhein-Westfalen v Pokrzeptowicz-Meyer); or the continued enjoyment of election to a representative position ( Licata v Economic and Social Committee).
iii) Where exploitation of a musical work had begun at a time when the work was not protected by copyright, a new law that revived copyright precluded further exploitation of the work ( Butterfly Music Crl v CEMED).
I agree with Mr Cavanagh QC that these two principles are not in conflict, but are complementary. Which of them applies depends on deciding whether a situation has become permanently fixed (or definitively established) before the entry into force of a new law.
I mentioned a technique which the Court of Justice uses to avoid practical retroactivity. That is to rule that a judgment of the court may only be relied on in the future. It is a technique only used in rare cases, where the court takes the view that its ruling has upset a widely held view of what the law was; and the practical consequences of retroactivity would be prejudicial. The court used this technique in ( Case C-262/88) Barber v Guardian Royal Exchange Assurance Group [1991] 1 QB 344. That case established for the first time that pension benefits payable under a non-contributory "contracted-out" scheme fell within article 119 of the EEC treaty relating to equal pay. The real question was not whether in principle pension benefits fell within the concept of "pay": that had already been decided by the court. The Court of Justice has consistently ruled that contractual pension benefits "constitute consideration received by the worker from the employer in respect of his employment": ( Case C-170/84) Bilka-Kaufhaus v Weber von Harz [1987] ICR 110 at [22]. The question was whether the fact that the scheme was a substitute for statutory entitlement to social security benefits took it outside the scope of article 119. The court decided that it did not, because the scheme in question, although "contracted-out," was itself the product of an agreement between employer and employee. However, the court concluded that because of derogations about pensionable age contained in a number of Directives member states and the parties were reasonably entitled to consider that that was not the law; and therefore limited the scope of its judgment. As the court put it at [44]:
"… overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called into question where that might upset retroactively the financial balance of many contracted-out pension schemes."
The concept underpinning this limitation on the effect of the judgment is, in my judgment, the same concept that distinguishes between situations that are permanently fixed or established and those that are not. Thus...
To continue reading
Request your trial
-
Walker v Innospec Ltd and Others
...[2017] UKSC 47 THE SUPREME COURT Trinity Term On appeal from: [2015] EWCA Civ 1000 Lady Hale, Deputy President Lord Kerr Lord Reed Lord Carnwath Lord Hughes Walker (Appellant) and Innospec Limited and others (Respondents) Appellant Martin Chamberlain QC Max Schaefer (Instructed by Liberty) ......
-
Ministry of Justice v Dermod O'Brien and Another
...acquired at the time of their service or only when they retired; which is a question of EU law. 2 In O'Brien v Ministry of Justice [2015] EWCA Civ 1000, decided on 6 October 2015, this court held that a worker definitively requires pension rights attributable to a particular period of days ......
-
Appeal By The Advocate General For Scotland And John Barton Against A Decision And Order Of The Eat Dated 24 April 2015
...that being the province of Parliament: HMRC v IDT Card Services Ireland Ltd [2006] EWCA Civ 29 at [82]; O’Brien v Ministry of Justice [2015] EWCA Civ 1000 [48]. It is not as if a person adversely affected by the state’s failure to legislate in implementation of a directive is without a reme......
-
Ormistons Law Practice Ltd v Scottish Legal Aid Board
...of Parliament (HM Revenue and Customs v IDT Card Services Ireland Ltd [[2006] STC 1252], para 82; O'Brien v Ministry of Justice (No 2) [[2016] ICR 182], para 48).’ Thus there are limitations and constraints on the application of the Marleasing principle. [38] The dicta of Lord Rodger of Ear......
-
Discrimination - Part Time And Fixed Term Workers - Pensions In 30 Podcasts, Episode 23
...NHS Trust [2001] UKHL 5 Uppingham School v Shillcock [2002] PLR 229 O'Brien v Ministry of Justice and Walker v Innospec & others [2015] EWCA Civ 1000 Part-Time Workers The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the "2000 Regulations") provide that ......
-
Court Of Appeal Rules On Survivor's Benefits For Same Sex Married Couples
...Court of Appeal has dismissed an appeal against the decision of the Employment Tribunal (EAT) in Innospec v Walker [2015] EWCA Civ 1000 confirming the treatment of survivor's benefits for civil partnerships and same sex married From 5 December 2005 civil partnerships were introduced, giving......