O'Brien (Appellant) v Ministry of Justice (Respondent)

Cite as:[2017] UKSC 46
Hand-down Date:July 12, 2017

Trinity Term [2017] UKSC 46 On appeal from: [2015] EWCA Civ 1000


O'Brien (Appellant) v Ministry of Justice (Respondent) before

Lady Hale, Deputy President Lord Kerr

Lord Reed

Lord Carnwath Lord Hughes JUDGMENT GIVEN ON 12 July 2017 Heard on 7 July 2016, 8 and 9 March 2017 Appellant Respondent Robin Allen QC

John Cavanagh QC Charles Bourne QC Rachel Kamm (Instructed by The Government Legal

Department) Rachel Crasnow QC

Tamar Burton

(Instructed by Browne Jacobson LLP)

LORD REED: (with whom Lady Hale, Lord Kerr, Lord Carnwath and Lord Hughes agree)


  1. This appeal raises a question relating to the temporal scope of Council Directive 97/81/EC of 15 December 1997, 1998 OJ L14/9, concerning the Framework Agreement on part-time work ("the directive") as extended to the United Kingdom by Council Directive 98/23/EC of 7 April 1998, 1998 OJ L131/10, and the general principles of EU law governing the non-retroactivity of legislation.

  2. The question arises in the context of proceedings between Mr Dermod O'Brien QC and the Ministry of Justice concerning the pension to which Mr O'Brien is entitled by reason of his part-time service in a judicial office.

  3. In essence, the question is whether, where a part-time worker retires after the entry into force of the directive and is entitled under the directive, taken together with national law, to an occupational pension based on his length of service, periods of service which were completed before the directive entered into force should be taken into account.

    The facts

  4. The material facts are as follows. Mr O'Brien is a retired self-employed barrister who also held part-time judicial office as a recorder (a part-time judge of the Crown Court) between 1 March 1978 and 31 March 2005, when he retired at the age of 65. Recorders were not salaried but were paid fees on a per diem basis. There was no provision for the payment of a judicial pension on retirement.

  5. In June 2005 Mr O'Brien wrote to the Ministry, requiring that he be paid a retirement pension on the same basis, adjusted pro rata temporis, as that paid to former full-time judges who had been engaged on the same or similar work. He was informed by the Ministry that he fell outside the categories of judicial office-holder to whom a judicial pension was payable. In September 2005 he began proceedings in the Employment Tribunal, in which he claimed that he was entitled to a judicial pension by virtue of the directive and the regulations transposing it into domestic law.

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  6. On 28 July 2010 the Supreme Court referred two questions to the Court of Justice for a preliminary ruling under article 267 TFEU:

    "(1) Is it for national law to determine whether or not judges as a whole are 'workers who have an employment contract or employment relationship' within the meaning of clause 2.1 of the Framework Agreement, or is there a Community norm by which this matter must be determined?

    (2) If judges as a whole are workers who have an employment contract or employment relationship within the meaning of clause 2.1 of the Framework Agreement, is it permissible for national law to discriminate (a) between fulltime and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?"

  7. On 1 March 2012 the Second Chamber of the Court of Justice, having received the opinion of the Advocate General (Kokott) on 17 November 2011, gave judgment: O'Brien (Case C-393/10) [2012] 2 CMLR 25. It answered the questions as follows:

    "(1) European Union law must be interpreted as meaning that it is for the member states to define the concept of 'workers who have an employment contract or an employment...

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