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part time judges take major step towards equal pension rights

2 March 2012

Thousands of part time judges are a step closer to receiving a judicial pension following a judgement by the European Court of Justice (ECJ) in the case of OBrien v The Ministry of Justice.

The ECJ ruled that whilst it was for individual countries to decide on who is a worker this definition must not undermine European law in relation to the protection to part-time workers.

It went on to conclude that the exclusion of part time judges from protection under European law could only be justified if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling under the category of workers.

European employment barristers, Robin Allen QC and Rachel Crasnow of Cloisters were instructed by Edward Benson of Browne Jacobson solicitors on behalf of retired Recorder (part-time judge) Dermod OBrien QC.

Mr OBrien alleges he is being discriminated against by the Ministry of Justice because he is denied a judicial pension on retirement pro rata to the pension of full-time circuit judges.

The Ministry of Justice claim Recorders are not entitled to the same pension rights as full time judges as they work part-time and their remuneration is called a "fee" rather than a "salary".

Edward Benson, Head of Employment at Browne Jacobson, commented:

"This judgement strongly supports Mr OBriens argument that fee-paid judges, in his case, Recorders, are entitled to a pension in the same way that full-time judges are.

"Our argument is that denying a pension to part-time judges when full-time judges get a pension breaches the Council Directive on the Framework Agreement on part-time work.

"The Ministry of Justice argued that the UK was entitled to exclude part-time judges from the protection of the Directive and the UKs regulations implementing the directive.

"This judgment makes this argument extremely hard to continue with. Complete categories of workers, such as part-time judges, cannot simply be excluded from the protection of the directive, the court holds; and refusing them a pension is only permissible if there is some objective justification. The court made it clear that cost cannot amount to objective justification."

The final ruling in this case will be for the Supreme Court.

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