O’Brien v MOJ: an appreciation

Recorders and other part-time fee-paid judges – particularly those whose period of service extended back before 2000 – should give fervent thanks to Dermod O’Brien QC (pictured), his brilliant legal team and the publicity afforded to him by Counsel, following the 7 November 2018 European Court of Justice (ECJ) decision in O’Brien v Ministry of Justice (Case C-432/ 17).

Grindingly unfair: the background

In July 2000 the United Kingdom finally gave effect to clause 2.1 of the EU Framework Agreement requiring that part-time workers be treated no less favourably than full-time workers. However, the regulations expressly excluded fee-paid part-time judges. Most Recorders, myself included, accepted their deliberate exclusion with weary resignation, but not Mr O’Brien. He retired in June 2005 and asked the Ministry of Justice (MOJ) for a retirement pension on the same basis as a full-time judge adjusted pro rata. He was informed by the MOJ that he fell outside the categories of judicial office-holder to whom a judicial pension was payable.

Apart from a few grumbles from those affected, the government probably calculated that no one else would seriously object. But Mr O’Brien refused to take no for an answer and took the MOJ to the employment tribunal claiming a pension by virtue of the Part Time Directive which the UK (as it had to) adopted and transposed into domestic law. So began the litigation which has so far lasted almost 14 years.

From ECJ to supreme court and back

In March 2012 the ECJ held that the UK could not discriminate between full-time judges and part-time judges remunerated on a daily fee-paid basis unless such a difference was justified by objective reasons. The argument put forward by the MOJ to the Supreme Court that part-time judges were like casual fruit pickers and as dispensable was not accepted and the court held that no objective reason had been shown for not remunerating fee-paid part-time judges on the same basis as full-time judges. Mr O’Brien was at all material times a part-time worker within clause 2.1 of the Framework Agreement.

The MOJ had to concede that part-time fee-paid judges were entitled to a pension but argued that only sittings accrued since April 2000 should be taken into account in the calculation. Mr O’Brien was appointed as a Recorder in March 1978 and therefore if the MOJ was right, the vast majority of his service would have to be disregarded. He continued litigating for his pension to be calculated on the whole of his service. By this time he had been joined in the litigation by most of the other part-time judges, but even so it took a great deal of courage and self-belief to press on in face of the prevailing judicial opinion that there was little prospect of success on this point. In July 2017 the Supreme Court, although expressing some sympathy for the argument, considered the matter was not acte clair and referred the issue to the ECJ.

Full length of service

On 7 November 2018 the ECJ came down unequivocally in favour of Mr O’Brien. The court found that the period of his service before April 2000 must be taken into account for the purpose of calculating retirement pension entitlement.

The MOJ has accepted that the Supreme Court will follow the decision of the ECJ and in a recent update to the Employment Tribunal has said that it will seek legislative changes to pension regulations to recognise claimants pre-April 2000 fee-paid service. However, mindful of the delay that a legislative remedy will entail, it intends to offer to eligible retired claimants a voluntary interim payment to mitigate their losses. It is establishing a judicial claims team to handle the claims of such claimants, and in a May 2019 update advises eligible claimants to start collating their evidence: bit.ly/2VQ3MSz.

Out of time?

Although the MOJ has formally conceded that eligible claimants who have already established a successful claim for a pension in respect of fee paid employment prior to April 2000 are entitled to a pension for all periods that they served, they raised an argument at a late stage that Mr O'Brien, together with the Miller appellants, had made their claims of unlawful discrimination out of time. The Court of Appeal agreed. The appellants appealed to the Supreme Court on this issue. The Supreme Court made no finding but implicitly agreed with the appellants’ argument that their claims were not made out of time on the basis that the less favourable treatment continues up to and including the point of retirement. The Supreme Court decided that the judgment in the Miller appeal must await the outcome of the reference in O’Brien. In the Supreme Court the MOJ had unambiguously conceded that the Miller and O'Brien appeals stood or fell together but now it apparently wants to argue against this. Half a day on 11 July 2019 has been allowed by the Supreme Court to hear the MOJ's arguments such as they are. There is always a chance that the MOJ will consider its position and avoid a hearing.

However, one thing I can say with confidence is that everyone who has ever sat or will in future sit as a part-time fee-paid judge will have Mr O’Brien to thank for their judicial pension and all other former fee-paid judges riding on Mr O’Brien’s coat tails will get their pensions assessed on their full length of service whenever it began.