Judicial pension case heads to Europe for second time

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Jul 13, 2017
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The European Court of Justice must decided whether pensions for part-time judges should be calculated in retrospect or from the point at which an EU directive came into force

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A test challenge that could give thousands of part-time judges backdated judicial pensions has been referred for a ruling to Europe’s top court.

The Supreme Court said it was sending the long-running case to the European Court of Justice (ECJ) in Luxembourg for a decision on an interpretation of EU law as it is not persuaded that either side is “clearly right”.

The challenge has been brought by Dermod O’Brien, a retired self-employed barrister, who also worked as a part-time judge, or recorder in the crown court, between 1978 and 2005. At the time, salaried judges were entitled to a pension based on their final salaries but part-time judges, working on a daily fee, were not. O’Brien argued that this was unlawful discrimination under the EU part-time workers’ directive but the Ministry of Justice ruled that the EU regulations, which took effect on July 2000, did not apply to fee-paid part-time judges.

Yesterday’s ruling marks the second time that case has been through the courts and ended up in Europe. Originally O’Brien brought proceedings against the Ministry of Justice, claiming an entitlement to a pension. The case reached the Supreme Court, which referred it to the ECJ, which upheld his challenge in 2013 after an eight-year battle, ruling that he was entitled to a pension that equated to a comparable full-time judge.

The case went back to the English employment tribunal to decide the amount of pension to which he was entitled. However, the question then arose as to whether account should be taken of all his service, a period of 27 years, or only his service since 2000, when the EU directive came into force. The case went through the system again, ending up at the Supreme Court, where five judges unanimously referred it back to Luxembourg.

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