The Future Effects Principle in European law: Cloisters wins reference to the Court of Justice on behalf of hundreds of part-time judges whose pensions have been calculated on a limited basis

The Supreme Court has this morning handed down judgment in the cases of O’Brien and Miller and ors v Ministry of Justice.

The Supreme Court has made a reference to the Court of Justice of the European Union.

The cases concern discrimination against part-time judges in the calculation of pensions. The issue is whether periods of service as a part-time judge prior the coming into effect of Part Time Workers Directive (97/81/EC) should be taken into account in calculating the amount of pension to be paid upon retirement.

Mr O’Brien was appointed as a Recorder sitting part-time on the Western Circuit on 1 March 1978, an office he held until 31 March 2005. He is entitled to a pension by virtue of the Part Time Workers Directive, which the United Kingdom was required to transpose into domestic law by 7 April 2000, following the Supreme Court’s previous decision in 2012: see Department of Constitutional Affairs v O'Brien [2013] I.C.R. 499.

When the case was remitted to the employment tribunal Mr O’Brien, alongside other part-time judges, contended that he was entitled to have his service prior to 7 April 2000 taken into account in the calculation of the amount of his pension. He relied on the concept of European law known as “the future effects principle”; namely that “new rules apply, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the old rule” as set out in the joined cases of Istituto Nazionale della Previdenza Sociale v Bruno & Pettini C-395/08 and C-396/08 [2010] ECR I-5199.

The Ministry of Justice accepted that his pre-2000 service was relevant for the issue of qualification for a pension but not quantification of a pension. For Mr O’Brien the difference between these competing submissions is a period of 27 years or a period of less than five years.

The Employment Tribunal issued a decision in Mr O’Brien’s favour on this issue; on appeal, the Employment Appeal Tribunal allowed the Ministry of Justice’s appeal; and the Court of Appeal agreed with the Employment Appeal Tribunal and dismissed Mr O’Brien’s appeal.

The Supreme Court has indicated that the majority of the Court accept the Appellants’ submission that it is unlawful to discriminate against part-time workers when a pension falls due for payment. In so far as part of the period of service took place prior to the Directive’s entry into force, the Directive applies to the future effects of that situation.

However, the Supreme Court has concluded that the point is not acte clair and has referred the issue to the Court of Justice of the European Union.

The point has wider significance beyond the issue of discrimination against part-time workers. It is relevant for individuals who, for discriminatory reasons, did not accrue rights prior to the coming into effect of a Directive and who now seek to exercise rights obtained under a Directive.

Robin Allen QC, Rachel Crasnow QC and Tamar Burton represented the Appellants.

The Judgment can be found here