O’Brien case – implications for firefighters’ pensions
The O’Brien case concerned discrimination against part-time judges in the calculation of pensions. The issue was whether periods of service as a part-time judge prior to the coming into effect of Part Time Workers Directive should be taken into account in calculating the amount of pension to be paid upon retirement.
Mr O’Brien was appointed as a part time judge on 1 March 1978, an office he held until 31 March 2005. He argued that he was entitled to the same retirement pension as his full-time colleagues (on a pro rata basis) by virtue of the Part Time Workers Directive, which the United Kingdom was required to transpose into domestic law (by 7 April 2000). The UK implemented the Directive by virtue of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) on 1 July 2000. Ultimately, the Supreme Court agreed with him and sent the case back to the employment tribunal so that it could determine the amount of pension to which Mr O’Brien, alongside other part-time judges, was entitled. He contended that he was entitled to have all of his service taken into account in the calculation of the amount of his pension including the element of his service prior to 7 April 2000.
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. This meant that the calculation of Mr O’Brien’s pension entitlement would only take into account his service after 7 April 2000. When Mr O’Brien appealed to the Supreme Court, they referred the issue to the CJEU for guidance.
Court of Justice of the European Union (CJEU)
The CJEU concluded that part-time work undertaken before the deadline for transposing the Part-Time Workers Directive on 7 April 2000 must be taken into account for the purposes of calculating a retirement pension. In Mr O’Brien’s case this meant that all of his service as a part time judge would be taken into account.
In response to the judgement the government has stated they accept that eligible claimants who have already established under the PTWR, a successful claim for a pension remedy in respect of a fee paid appointment, would be entitled to further remedy in respect of claimed pre 7 April 2000 service in that appointment.
The government are currently considering how such service should be credited.
Action for our members
Some years ago the Fire and Rescue Services Association (FRSA) instructed our legal advisers to monitor the case with a view that it would have direct national implications on our members as Part-time workers. In recent months during our discussions with the Home Office and the LGA, it has been confirmed that Retained/On-Call firefighters, who fit the necessary criteria will become eligible to access pensionable service prior to 01 July 2000 (when the PTWR came into effect). The Remedy (how the judgement is implemented in practice) is yet to be agreed but we will ensure that our members are represented during these discussions and during these final stages are kept briefed on a regular basis as and when further relevant information is available.
It is our understanding that FRSA members (past and present) will be in a better position to make a successful application for past service due to our superior record-keeping which became apparent during the previous pension options exercise (when reconciling with the data held by other relevant parties). Additionally, the FRSA had the foresight of submitting Employment Tribunal applications on behalf of our members back in 1994 (which remain in place to this day) which will provide further assistance in identifying past members and processing applications.
We understand that this information will provide our members with additional questions, most of which we are not in a position to answer at this time and won’t be until further discussions have taken place with the government on how it proposes to deal with the remedy. However, please be confident that we will make the necessary representations on behalf of our members and provide further information as and when it becomes available.
In the meantime, please keep an eye on our website and further e-bulletins.