O’Brien v Department for Constitutional Affairs: CA 19 Dec 2008

The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to remit the case to the Employment Tribunal for a substantive hearing because the claim would be bound to fail. The claimant was paid a fee according to his appearances, and the Regulations were disapplied to such workers.

Sir Andrew Morritt, Chancellor, Lady Justice Smith and Lord Justice Maurice Kay
[2008] EWCA Civ 1448, [2009] IRLR 294, [2009] 2 CMLR 15, [2009] ICR 593
Bailii, Times
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, Part-time Workers Framework Directive 97/81/EC)
England and Wales
CitedChristie v Department for Constitutional Affairs Department for Work and Pensions EAT 23-Jul-2007
EAT Part time chairmen of tribunals are not workers within the legislation allowing them to claim payment of a pension. Regulation 17 was compatible with the Directive. . .
Appeal fromDepartment of Constitutional Affairs v O’Brien EAT 22-Apr-2008
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
CitedRobertson v Bexley Community Centre CA 11-Mar-2003
The claimant brought his claim in discrimination, but it was out of time. The employer appealed against a decision to extend the time for him to file his complaint.
Held: A tribunal has a very wide discretion in the area of whether to extend . .
CitedIncome Tax Special Commissioners v Pemsel HL 20-Jul-1891
Charitable Purposes used with technical meaning
The House was asked whether, in a taxing statute applying to the whole of the United Kingdom and allowing for deductions from and allowances against the income of land vested in trustees for charitable purposes, the words ‘charitable purposes’ . .
CitedMatthews and others v Kent and Medway Towns and Fire Authority and others HL 1-Mar-2006
Retained or part-time firefighters sought parity of working conditions with full time firefighters.
Held: The retained firefighters’ appeal succeeded (Lords Carswell and Mance dissenting). The test was whether the part-time and full time . .
CitedWippel v Peek and Cloppenburg GmbH and Co. KG ECJ 12-Oct-2004
ECJ Opinion – Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between male and female workers – Working hours and . .
CitedTerrell v Secretary of State for the Colonies 1953
A judge of the Supreme Court of Malaya had been appointed in 1930 on the understanding that the retiring age should be sixty-two. When Malaya was overrun by the Japanese in 1942 he was retired on a pension, some time before he had reached sixty-two, . .
CitedSheikh v Independent Tribunal Service EAT 16-Mar-2004
Part-time chairmen of social security tribunals were office holders rather than employees and were not Crown employees. . .
CitedKnight v Attorney General 1979
A judge’s status does not bring her within the scope of the 1975 Act as an ’employee’. . .
CitedPerceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
CitedWalker (Her Majesty’s Inspector of Taxes) v Centaur Clothes Group Limited HL 16-Mar-2000
Where a company which had ceased trading and fallen outside the tax regime, subsequently declared a dividend, it was deemed to be a new accounting period, and the dividend did fall to be taxed, and any advance corporation tax could be set off . .

Cited by:
Appeal fromO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
At CAO’Brien v Ministry of Justice ECJ 17-Nov-2011
ECJ (Opnion) Directive 97/81/EC – Framework Agreement on part-time work – Notion of part-time workers who have an employment contract or employment relationship – Part-time judges
Kokott AG said: ‘In this . .
At CAO’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At CAO’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
See AlsoO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
See AlsoO’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .

Lists of cited by and citing cases may be incomplete.

Employment, European, Legal Professions

Updated: 02 November 2021; Ref: scu.278983