A former part-time judge has failed with a retroactive claim for pension rights, a decision which will affect others in a similar position.
In O’Brien v Ministry of Justice, the Court of Appeal ruled that Dermod O’Brien, a former part-time recorder, is not entitled to calculate his pension from before the European Directive on Part-time Work came into force in April 2000. He had argued that he should receive a pension dating from when he began his service as a recorder in March 1978.
The former judge’s original claim dates from 2005, when he was told on retirement that he was not entitled to a pension. Two years ago an employment tribunal said he was entitled to a pension for his full service following a ruling in the Supreme Court that part-time judges are ‘workers’ for the purpose of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
But the employment appeal tribunal disagreed and its decision was upheld by Lord Justice Underhill, Lord Justice Lewison and master of the rolls Lord Dyson, sitting in the Court of Appeal.
Underhill said that to calculate O’Brien’s entitlement prior to the part-time worker’s directive coming into effect through the regulations would give the directive a ‘retroactive effect’, which would go against EU law.
Lewison said: ’At the time of Mr O’Brien’s service before 7 April 2000 as a part-time worker he acquired no pension rights, and cannot do so retroactively.’
Commenting on the case Jennifer Bell, head of pensions at international firm Nabarro said: ’The decision applies general EU legal principles and will apply not only to Mr O’Brien and to his part-time judge colleagues, but also to anyone else seeking to claim pension rights in relation to part-time service prior to 7 April 2000.’