CJEU rules part-time judge should have pension backdated

Written by Natalie Tuck
7/11/18

The Court of Justice of the European Union has ruled that a part-time recorder (fee-paid judge) should have his pension backdated to include his service prior to the introduction of a UK law that enabled him to accrue a pension.

Dermod O’Brien was appointed as a part-time recorder in 1978, and worked as one until March 2005. However, the Part Time Workers Directive, which allowed O'Brien to accrue a pension, was only introduced into UK law in April 2000.

When he left his position, O’Brien argued that his pension entitlement should be calculated by reference to all of his service as a recorder (27 years), rather than just the service following the implementation of the Part Time Workers Directive (five years).

O’Brien was successful in his claim at a tribunal, but the Court of Appeal and the Employment Appeal Tribunal agreed that the right to a pension payment is accrued at the time it is earned, regardless of the fact that no payment will be made until retirement. As a result, O’Brien appealed to the Supreme Court, which was unable to decide and subsequently passed the issue onto the CJEU.

Handing down its decision today, 7 November, the CJEU said that the periods of service completed prior to the deadline for implementation of the EU Directive must be taken into account for the purpose of calculating O'Brien's pension.

Commenting, Gowling WLG principal associate Hannah Beacham said: “The CJEU rejected the UK government's argument that deferred pay in the form of a pension accrues in the same way as other forms of pay and, as such, pension rights earned before the implementation of the Directive cannot be taken into account.

"The CJEU gave two reasons for this. First, the UK government at no time requested that the CJEU limit the temporal effects of its earlier judgment that national law cannot establish a distinction between full-time judges and part-time judges, unless that difference in treatment is objectively justified. Second, Mr O'Brien's circumstances were different to those in the case law (Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf) that the UK government had cited in support of its case.”

She added that whilst this decision dealt with a non-contributory public sector pension scheme where pension benefits are calculated by reference to service with the employer (rather than service whilst contributing to the pension scheme, which is more typical), it is nonetheless an important decision in terms of demonstrating the CJEU's views on the application of European law to pension rights that have built up prior to that law coming into effect.

“This is also not the only case currently in the courts concerning judges' pensions. Separately, a case is being heard in the Court of Appeal on whether or not changes to judges' pensions made at a similar time to other public sector pension reforms a few years ago discriminated against judges because of age, and had a disproportionate impact on female and BAME judges, because of transitional provisions which offered protection for older judges approaching retirement,” she noted.

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