O’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 holders paid on a daily fee-paid basis.
Held: The matter required to be referred to the ECJ. ‘Recorders (and all judges at every level) are subject to terms of service of the sort referred to by Sir Robert Carswell LCJ. Indeed judicial office partakes of most of the characteristics of employment. However, because domestic law cannot readily be disentangled from EU law on this issue the Court prefers to express no concluded view, as to whether judges (as a general class) would qualify as ‘workers’ under the Regulations.’ There is no single definition of ‘worker’ which holds good for all the purposes of Community law, and the effect of Clause 2(1) of the Framework Agreement, read together with Recital (16) of the PTWD, is to make domestic law relevant to the interpretation of the expression ‘worker’, but domestic law is not to oust or ‘trump’ the principles underlying the EU legislation in such a way as to frustrate them.

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Clarke, Sir John Dyson SCJ
[2010] UKSC 34, [2010] 4 All ER 62, [2010] IRLR 883, [2010] Pens LR 399
Bailii, Bailii Summary, SC, SC Summary
Council Directive 97/81/EC of 15 December 1997, Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000 No.1551)
England and Wales
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Appeal fromO’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 . .
At EATDepartment 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 . .
CitedDeborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
ApprovedPerceval-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 . .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedMartinez Sala v Freistaat Bayern ECJ 12-May-1998
ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which . .
CitedAllonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
CitedLandeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .
CitedPfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
CitedYolanda Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud) ECJ 10-Jan-2007
ECJ ETUC-UNICE-CEEP framework agreement Fixed-term work Working conditions Length’of’service allowance Not received due to agreements between staff union and administration Adequate objective grounds.
CitedIstituto nazionale della previdenza sociale (INPS) v Bruno, Pettini (Social Policy) ECJ 10-Jun-2010
Europa Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
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 . .
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. . .

Cited by:
CitedJivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
At SCO’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 SCO’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 SCO’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 . .

Lists of cited by and citing cases may be incomplete.

European, Employment, Legal Professions

Updated: 11 November 2021; Ref: scu.421096