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preliminary victory as part time judges considered workers

11 July 2012

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

At a hearing on 4 July 2012 the Supreme Court were asked to determine whether Mr OBriens relationship with the Ministry of Justice (MoJ) was substantially different from that between employers and their employees falling under the category of workers. In a preliminary ruling this week, the Supreme Court held that Mr OBrien was a part-time worker within the meaning of clause 2.1 of the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC. The Supreme Courts reasons will be given in writing at a later date.

The Court has also requested that the MoJ make their case on Objective Justification, and has provided further directions resulting in another hearing in November.

At a previous hearing the Court of Justice of the European Union (CJEU) 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.

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, Employment Partner 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 - it appears from this decision that the Supreme Court agrees.

"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 leaves the MoJ only one further argument - that there is some objective justification for excluding Part time judges. This will be the subject of the hearing in November."

The extent to which the ruling can be applied to all part time judges remains to be seen, but this is a significant breakthrough for judges throughout the country.

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