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

The Supreme Court held that fee-paid part-time recorders are "workers" within the meaning of clause 2.1 of the Framework Agreement annexed to Council Directive 97/81/EC (the Part‑Time Workers Directive) and therefore fall within the scope of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 unless there is objective justification for different treatment. The court applied the CJEU's guidance that national law determines the concept of worker subject to the requirement that any exclusion is not arbitrary and that the nature of the relationship is not substantially different from employment. Having addressed the Ministry of Justice's putative justifications, the Supreme Court concluded that no objective and transparent reasons had been shown to justify denying a pro rata pension to recorders; budgetary considerations alone cannot justify the discrimination. The Court allowed the appeal and remitted the matter to the Employment Tribunal to determine the amount of pension payable.

Background and parties. The appellant, a retired barrister who had served as a part‑time recorder, claimed entitlement to a retirement pension under the judicial pension scheme for his part‑time, fee‑paid judicial service. The respondent was the Ministry of Justice (formerly the Department for Constitutional Affairs). The appellant brought claims under domestic discrimination and equality legislation and relied on the Part‑Time Workers Directive and the domestic regulations giving effect to it.

Procedural history. The Employment Tribunal initially found for Mr O'Brien. The Employment Appeal Tribunal allowed the Department's appeal on limitation grounds. The matter was then litigated as a test case, and on 19 December 2008 the Court of Appeal allowed Mr O'Brien's time‑limit appeal but dismissed his substantive claim ([2008] EWCA Civ 1448). The Supreme Court gave permission to appeal and referred two questions to the Court of Justice of the European Union under Article 267 TFEU. The CJEU answered that member states define "worker" subject to avoiding arbitrary exclusion and that differences in access to pensions between full-time and fee‑paid part‑time judges require objective justification. The Supreme Court then determined the remaining issues.

Nature of the claim and relief sought. The appellant sought a declaration and payment that his part‑time fee‑paid judicial service should attract a retirement pension on terms equivalent, pro rata, to those of comparable full‑time judges.

Issues framed by the court. (i) Whether recorders (fee‑paid part‑time judges) are "workers" within clause 2.1 of the Framework Agreement and therefore within the 2000 Regulations; (ii) if they are workers, whether the different treatment in access to the judicial pension scheme could be objectively justified.

Court’s reasoning. On the worker issue the court applied the CJEU criteria (appointment/removal procedures, organisation of work, entitlement to employment‑type benefits, the extent to which the office is governed by terms of service and not merely commercial freedom) and concluded that recorders are in an employment relationship for the purposes of the Framework Agreement and must be treated as "workers" under the 2000 Regulations. On objective justification the court considered the Ministry's putative aims (fair distribution of pension resources, recruitment of high quality full‑time judges, and control of pension costs) and found they were not supported by precise, objective and transparent factors specific to recorders as a class. Importantly, the court reiterated the CJEU principle that budgetary considerations alone cannot justify discriminatory treatment. The court concluded there was no objective justification for denying pro rata pensions to recorders and remitted the case to the Employment Tribunal to quantify the pension entitlement.

Wider context. The court noted the wider significance for many categories of fee‑paid part‑time judicial office‑holders and emphasised the CJEU's requirement that exclusions from Directive protection must not be arbitrary and must be justified by objective reasons specific to the category concerned.

Appeal allowed. The Supreme Court held that recorders (fee‑paid part‑time judges) are "workers" under clause 2.1 of the Framework Agreement and so fall within the scope of the Part‑Time Workers Directive and the 2000 Regulations. The Ministry of Justice had not shown objective, precise and transparent reasons to justify excluding fee‑paid part‑time judges from pro rata retirement pension entitlement. Budgetary considerations alone are not a permissible justification. The Court remitted the question of the amount of pension payable to the Employment Tribunal.

Employment Tribunal (initial decision for Mr O'Brien); Employment Appeal Tribunal allowed Department's appeal on time grounds; Court of Appeal allowed time‑limit appeal but dismissed substantive claim, Department of Constitutional Affairs v O'Brien [2008] EWCA Civ 1448; Supreme Court referred questions to the CJEU (referral in [2010] UKSC 34) and, after receiving the CJEU ruling, allowed Mr O'Brien's appeal in [2013] UKSC 6 and remitted the quantification of pension to the Employment Tribunal.