A two-for-the-price-of-one judgment from the Court of Appeal in O'Brien v Ministry of Justice (part-time judges) and Innospec v Walker (civil partner rights) has confirmed that current UK restrictions on backdating benefit entitlements do not breach EU law.

In both cases the appellants claimed backdated pension rights to the date on which they commenced the relevant office/employment. The respondents argued that backdating should only be to the date on which the relevant EU law was transposed into UK law (7 April 2000 and 5 December 2005 respectively).

In relation to the pension rights of part-time workers, the court held that Mr O'Brien was only entitled to accrue pension from 7 April 2000 (although he had worked as a part-time judge since 1978). His pension rights fell to be determined on the basis of the EU rules which applied at the time of the period of service in relation to which those rights accrued (or would have accrued). It was not until 7 April 2000 that employers had to provide part-time workers with pension rights equivalent to those of full-time employees. Mr O'Brien therefore had no rights to any pension accrual before that date. 

This must be contrasted with earlier cases concerning the pension rights of part-time workers brought by women (a leading case being Preston v Wolverhampton) – this is because those cases concerned claims of indirect sex discrimination (rather than being directly on the grounds of the claimants' status as part-time workers). This has been unlawful under EU law since 1976.  

Mr Walker left service in 2003, before the Civil Partnership Act came into force (5 December 2005). Schemes are only required to provide surviving civil partners with equivalent rights to widows and widowers in relation to benefits accrued through service from that date. Mr Walker argued that a discriminatory act (i.e. the refusal to confirm that a pension would be payable on his death to his civil partner) had occurred after 5 December 2005 and therefore his partner should qualify for a pension. He also argued that the prohibition of discrimination on the ground of sexual orientation is a fundamental principle of EU law and that UK legislation must be read to give effect to this.

The court held that at the time Mr Walker earned his pension entitlement, the discriminatory treatment was lawful. Conduct which was lawful when it occurred cannot be rendered unlawful by a change in law (unless expressly stated to do so). It also confirmed that the right not to be discriminated against on the grounds of sexual orientation did not become a fundamental principle of EU law until 3 December 2003 – Mr Walker had already left service by then. In any case, the court held that the UK approach of limiting the prohibition of discrimination to service from 5 December 2005 was consistent with EU law.

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