O'Brien v Ministry of Justice (Formerly the Department for Constitutional Affairs)

A fee-paid part-time judge may be a worker despite holding statutory office and exercising judicial independence. The essential distinction is between persons who work for themselves and those who work for others. National law cannot arbitrarily exclude judges from protection against part-time discrimination unless their relationship is substantially different from an ordinary employment relationship.

Part-time workers should ordinarily receive remuneration and benefits, including occupational pensions, on a pro rata basis. Different treatment requires a legitimate aim, precise and transparent criteria, and measures which are suitable and reasonably necessary. A general statutory exclusion or the simple saving of public money cannot provide objective justification.

O'Brien v Ministry of Justice (Formerly the Department for Constitutional Affairs) concerned a barrister who served as a fee-paid recorder from 1978 until 2005. On retirement he was refused a judicial pension because a recorder was neither a qualifying salaried judicial office-holder nor, according to the Ministry, a worker protected by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The Employment Tribunal upheld his claim, but the Employment Appeal Tribunal accepted the Ministry's time-limit objection. The Court of Appeal in Department of Constitutional Affairs v O'Brien [2008] EWCA Civ 1448 resolved the time issue in his favour but directed dismissal of the substantive claim because judges were not workers under the domestic Regulations.

Following a preliminary reference, the Court of Justice ruled that national law could exclude judges only where their relationship with the Ministry was substantially different from an employment relationship and that unequal pension treatment required objective justification. The Supreme Court therefore had to decide whether recorders were workers and whether denying them access to the judicial pension scheme was objectively justified.

1. Disposition. The appeal was allowed and the Court of Appeal's order was set aside. The appellant was entitled to a pension on terms equivalent to those applicable to a circuit judge. The claim was remitted to the Employment Tribunal to determine the amount due under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

2. Employment relationship. Per Lord Hope and Lady Hale, delivering the judgment of the court, the national classification of judges as office-holders did not determine whether they were workers for the Framework Agreement. Judicial independence concerned the performance of the adjudicative function and did not prevent an employment relationship or protection from discrimination. The relevant distinction was between a person working for himself and one working for others.

3. Recorders performed public service work of a different character from their private professional practices. Their appointment and removal were regulated, their work was organised for defined periods, they were required to observe terms of service and could be disciplined for non-compliance, and they received service benefits comparable to those of full-time judges. Their freedom in deciding cases did not make them self-employed. Recorders were therefore in an employment relationship within clause 2.1 of the Framework Agreement and had to be treated as workers under the domestic Regulations.

4. Objective justification. Less favourable treatment of part-time workers had to respond to a genuine need, pursue a legitimate aim, be suitable for achieving that aim and be reasonably necessary. The justification also had to rest on precise, concrete and transparent criteria relating to the relevant employment condition. Enactment of a general exclusion, such as regulation 17, could not itself justify the discrimination. The ordinary expectation was equal remuneration and benefits calculated pro rata temporis.

5. The Ministry's asserted fairness criteria were neither precise nor class-wide. Other income did not compensate a recorder for losing the pension element of remuneration while undertaking judicial work. Nor was it shown that fee-paid judges as a class contributed less to the justice system. Although recruiting a high-quality judiciary was a legitimate aim, denying pensions to part-time judges was not shown to promote recruitment to full-time office. The remaining justification was the saving or reallocation of public money. Budgetary considerations could influence the total resources devoted to a public system, but could not alone justify discriminatory distribution within it. No objective justification had therefore been established for departing from pro rata pension provision.

• United Kingdom Supreme Court: Having made a preliminary reference in [2010] UKSC 34 and received the Court of Justice's ruling, the court allowed the appeal, set aside the Court of Appeal's order and remitted the claim to the Employment Tribunal to assess the pension due.
• Court of Justice of the European Union: On the preliminary reference, the court held that judges could be excluded from the Framework Agreement only where their relationship with the Ministry was substantially different from an employment relationship. It also held that unequal pension treatment required objective justification.
• Court of Appeal: In Department of Constitutional Affairs v O'Brien [2008] EWCA Civ 1448, the court allowed the claimant's appeal on the time-limit issue but directed the Employment Tribunal to dismiss the substantive claim because judges were not workers under the domestic Regulations.
• Employment Appeal Tribunal: The Ministry's appeal succeeded on the basis that the claim had been presented outside the applicable three-month period and that no statutory extension applied.
• Employment Tribunal: The claimant initially succeeded in his challenge to the refusal of a pension.