The Ministry of Justice v O’Brien: EAT 4 Mar 2014

The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a matter of law, take into account only his period of service since the Directive had to be brought into force, 7th April 2000, and not any earlier period of service when discrimination against part-time workers had not been rendered unlawful under the Directive. This follows from many decisions of the ECJ/CJEU on occupational pensions and reflects the principle well-established in European law of legal certainty. This legal position is acte clair and no reference to the CJEU is required.
However, the Claimant was, as a matter of pleading, entitled to argue that his pension calculations should reflect a notional full-day’s pay for a full-day’s training, even though the fees actually paid had only been for a half-day.
For the purposes of comparison with the position of a full-time circuit judge and the pro-rata calculation of pension for the part-timer, the full-time judge should be taken to work for 210 days per annum.
Appeal by the Ministry of Justice allowed in part.


Sir David Keene


[2014] IRLR 440, [2014] UKEAT 0466 – 13 – 0403, [2014] ICR 773




England and Wales


See AlsoDepartment of Constitutional Affairs v O’Brien EAT 22-Apr-2008
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
At SC (1)O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .

Cited by:

Appeal fromO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
At EATO’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
At EATMinistry Of Justice v O’Brien and Others CA 9-Nov-2015
. .
At EATMiller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Discrimination

Updated: 20 May 2022; Ref: scu.522144