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pension case for part-time judges clears final hurdle - Supreme Court ruling

6 February 2013

The Supreme Court, in OBrien v Ministry of Justice, has today (6 February 2013) ruled that part-time judges are entitled to the same pension, pro rata, as full-time judges. Until now, full-time judges receive a judicial pension while part-time judges do not. The pension, as the Ministry of Justice acknowledged, is a significant part of a judges remuneration. The principles established will have important implications for all part-time workers.

The case depended on whether the EU Directive on part-time workers applied to judges and, if it did, whether excluding part-time judges from judicial pensions contravened the Directive (and the UK regulations implementing the Directive). That in turn depended on whether excluding part-time judges from judicial pensions could be objectively justified.

Browne Jacobson acted for Mr OBrien, a Recorder (one category of part-time judge). The claim started in the employment tribunal in 2005 and has worked its way through the courts, via the European Court of Justice, until final hearings in the Supreme Court in July and November 2012. Mr OBrien was represented in court by Robin Allen QC and Rachel Crasnow of Cloisters Chambers.

Edward Benson, an employment partner at Browne Jacobson who acted for Mr OBrien said: "We are delighted to have cleared the final hurdle that will ensure fair treatment for part - time judges. This decision also has wider implications and will be an important yardstick for part-time workers in ensuring that they cannot be treated less favourably just to save the employer money."

The two issues for the Supreme Court were:

- whether judges are workers for the purposes of the Part-time Workers Regulations 2000.

- whether excluding Recorders from the judicial pensions scheme was objectively justified.

The Supreme Court issued a preliminary ruling in July that part-time judges are workers and so are protected.

The November hearing focused on whether the grounds put forward by the Ministry of Justice could justify excluding Recorders from a judicial pension. Broadly, the grounds put forward were fairness and cost. Both these were rejected by the Supreme Court. All that remains now is to decide on the appropriate remedy. That will be decided by an employment tribunal.

The ruling establishes that all part-time judges, not just Recorders, are workers and so are protected. The ruling on justification, however, focused just on the position of Recorders. It might be possible, therefore, for the Ministry of Justice to rely on some different grounds of justification for judges other than Recorders.

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