Ministry of Justice v O’Brien (No 2)

For a pension claim based on the Part-time Workers Directive, pension rights accrue during service only to the extent that the relevant right existed when the service was performed. Service before 7 April 2000, when the Directive had to be implemented in the United Kingdom, could not increase the level of pension benefits, although it could count towards qualifying service for access to a pension. This followed the European law principle of legal certainty.

A contention that particular training-day fees should be reflected in the pension calculation concerned remedy and did not require a separate cause of action to be pleaded. For a pro rata comparison with a full-time circuit judge, the appropriate annual divisor was 210 working days.

Mr O’Brien, a former part-time fee-paid Recorder, claimed a judicial pension equivalent, pro rata temporis, to that of a full-time circuit judge. The Supreme Court had established his entitlement under the Part-time Workers Directive and remitted the case for calculation of the pension.

The Employment Tribunal decided that reckonable service ran from Mr O’Brien’s appointment in 1978, that an argument concerning full-day training fees did not require separate pleading, and that 210 days was the appropriate full-time divisor. The Ministry of Justice appealed on those three questions of law.

1. Year 2000 point. The appeal was allowed on this issue. Pension benefits under an occupational scheme are deferred pay and pension rights accrue gradually during service. A statutory judicial pension was not materially different from other occupational pensions.
2. The future-effects principle did not require pre-implementation service to increase the amount of pension payable. Bruno and Pettini concerned the calculation of qualifying service needed to obtain access to a pension, not the level of benefits. The distinction was supported by the line of European authorities concerning accrual, temporal limits and legal certainty.
3. Accordingly, Mr O’Brien’s pension rights under the Directive began on 7 April 2000, the date by which the Directive had to be transposed. Earlier service could count only for any qualifying period necessary to obtain access to a pension. The issue was acte clair and no reference to the CJEU was required.
4. Training days point. The appeal was dismissed. The argument that a training day should be treated as attracting a full-day fee concerned the calculation of the pension remedy. It did not advance a fresh cause of action and did not require separate pleading.
5. Full-time rate of days point. The appeal was dismissed. The evidence established that 210 days was the relevant requirement for a full-time circuit judge. Work undertaken outside ordinary sitting hours did not justify a divisor of 220, since there was no evidence that such work weighed more heavily on full-time judges than on part-time judges on a pro rata basis.

The appeal was therefore allowed on Issue 1 and dismissed on Issues 2 and 3.

• Supreme Court: In [2013] UKSC 6; [2013] ICR 499, Mr O’Brien’s entitlement to a pension was established and the matter was remitted to the Employment Tribunal for calculation.
• Employment Tribunal: On 19 August 2013, the Tribunal decided the three calculation issues now challenged.
• Employment Appeal Tribunal: The appeal was allowed on the pre-7 April 2000 service issue and dismissed on the training-day pleading and 210-day divisor issues.