O'Brien v Ministry of Justice

The Court of Appeal dismissed both appeals. It applied the complementary EU principles of non-retroactivity and the "future effects" principle to hold that occupational pension rights vest progressively during the periods of service to which they relate and become permanently fixed on expiry of those periods. Consequently, the Part Time Workers Directive (97/81/EC) could not be applied so as to alter the quantum of pension rights acquired by service before 7 April 2000 in Mr O'Brien's case.

Similarly, the court held that Mr Walker's entitlement to a survivor's pension must be judged by reference to the law in force at the time his service was performed and fixed. Schedule 9 paragraph 18 of the Equality Act 2010 lawfully preserves pension arrangements in respect of service before 5 December 2005; EU authorities relied on by the appellant (including Maruko and Römer) did not require a different result. The court declined to make a reference to the Court of Justice.

Background and parties.

• O'Brien: part‑time Recorder (appointed 1978, served until 31 March 2005) claimed that, under the Part Time Workers Directive (97/81/EC) as transposed, his pension should be calculated by reference to all sitting days since appointment rather than only those after transposition (7 April 2000). He appealed from the Employment Appeal Tribunal which had disallowed that wider calculation.
• Walker: employee of Innospec Ltd (service 1980–2003) sought to require the occupational pension scheme to pay a surviving spouse's pension to his same‑sex partner/husband. The Framework Directive (2000/78/EC) and later domestic measures were central to the claim. The Employment Tribunal had found for Mr Walker; the EAT reversed that decision.

Procedural posture. Both appeals came to the Court of Appeal from decisions of the Employment Appeal Tribunal (O'Brien: Sir David Keene UKEAT/466/13; Walker: Langstaff P UKEAT/232/13).

Relief sought. O'Brien sought a pension calculation that included service before 7 April 2000. Walker sought recognition of his husband as an entitled surviving spouse for pension purposes in respect of service completed before 5 December 2005.

Issues framed by the court.

• Whether EU law allows retrospective adjustment of the quantum of occupational pension rights to take account of pre‑transposition service (interaction of the "no retroactivity" and "future effects" principles; Barber/Ten Oever jurisprudence).
• Whether a survivor's pension could be extended to a same‑sex partner/husband in respect of service completed before the Framework Directive transposition deadline and whether Schedule 9 paragraph 18 of the Equality Act 2010 was incompatible with EU law or required disapplication.
• Whether a reference to the Court of Justice was required.

Reasoning and decision. The court reviewed EU jurisprudence (including Barber, Ten Oever, Bruno and Pettini, Maruko and Römer) and explained the distinction between (a) entitlement or access to a pension scheme, and (b) the calculation/quantum of benefits. It adopted the Advocate‑General's Ten Oever analysis that pension rights accrue during and are fixed by the relevant period of service and that legal certainty bars retroactive enlargement of vested pension rights. Bruno and Pettini were treated as addressing qualifying service for access rather than the quantum of benefits. In Walker's case the court held that Schedule 9 paragraph 18 reflects the temporal limitation required by legal certainty and is not incompatible with the Framework Directive; Maruko and Römer did not require a contrary outcome. The court declined to refer questions to the Court of Justice and dismissed both appeals.

Both appeals were dismissed. The court held that occupational pension rights accrue and become fixed by reference to the periods of service in which they were earned so that EU directives cannot be applied so as to enlarge the quantum of pension benefits attributable to service before the relevant transposition dates; and that Schedule 9 paragraph 18 of the Equality Act 2010 is not incompatible with the Framework Directive in the circumstances of Mr Walker's case. The court declined to refer either matter to the Court of Justice.

Appeals from Employment Appeal Tribunal decisions: O'Brien: EAT (Sir David Keene) UKEAT/466/13 ([2014] ICR 773) reversed the Employment Tribunal; Walker: EAT (Langstaff P) UKEAT/232/13 ([2014] ICR 645) reversed the Employment Tribunal. Both matters were heard in the Court of Appeal and dismissed (this judgment [2015] EWCA Civ 1000).