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

The Supreme Court was asked to determine whether a part-time worker, in this case Mr Dermod O'Brien, is entitled to an occupational pension based on his length of service, including periods of service that were completed before the entry into force of the Council Directive 97/81/EC concerning the Framework Agreement on part-time work. Mr O'Brien, a retired self-employed barrister who also held part-time judicial office, sought a judicial pension based on his part-time service. The Ministry of Justice argued that only the periods of service completed after the directive's entry into force should be taken into account.

The legal issues before the court were whether the directive's principle of non-discrimination requires that periods of service prior to the deadline for transposing the directive should be taken into account when calculating the amount of the retirement pension of a part-time worker, and whether the directive's principle of non-retroactivity prevents the retrospective application of the directive to the periods of service completed before its entry into force.

The court reasoned that while the directive applies to the future effects of a situation which arose under the old rule, the general principle of non-retroactivity of legal acts prevents the retrospective application of the directive to the periods of service completed before its entry into force. The court referred the question to the Court of Justice, which had not yet considered the argument that if an occupational pension is treated as deferred pay, the right to which is acquired at the time of the work to which the pay relates, then it follows from the general principle of non-retroactivity that the directive does not alter or affect rights acquired (or, in Mr O'Brien's case, not acquired) before it was brought into force.

The Supreme Court concluded that it was necessary to refer the following question to the Court of Justice: Does Directive 97/81, and in particular clause 4 of the Framework Agreement annexed thereto concerning the principle of non-discrimination, require that periods of service prior to the deadline for transposing the Directive should be taken into account when calculating the amount of the retirement pension of a part-time worker, if they would be taken into account when calculating the pension of a comparable full-time worker? The court awaits the response of the Court of Justice before making a final decision.