O’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 temporis. ‘The reality is that recorders are expected to observe the terms and conditions of their appointment, and that they may be disciplined if they fail to do so. The very fact that most recorders are self-employed barristers or solicitors merely serves to underline the different character of their commitment to the public service when they undertake the office of recorder.’ and ‘recorders are in an employment relationship within the meaning of clause 2.1 of the Framework Agreement on part-time work and . . as the result to be achieved by the PTWD is binding on the United Kingdom, they must be treated as ‘workers’ for the purposes of the 2000 Regulations.’
and ‘A private employer would not be able to justify paying part-time workers less or denying them access to its occupational pension scheme and the State should be in no different position. At bottom, this is not an argument about fairness. It is premised on there being a limited pot of money available to fund judicial pensions. That, it is said, is an impermissible premise: budgetary considerations cannot justify discriminatory treatment. ‘


Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Clarke, Lord Dyson


[2013] UKSC 6, [2013] 1 WLR 522, [2013] IRLR 315, [2013] WLR(D) 47, UKSC 2009/0123


Bailii, WLRD, Bailii Summary, SC, SC Summary


European Communities Act 1972 3(1), Council Directive 97/81/EC, Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, Employment Relations Act 1999 19, Judicial Pensions and Retirement Act 1993 2, Courts Act 1971 821


England and Wales


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 . .
At CAO’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 SCO’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 . .
OpinionO’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 ECJO’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 . .
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 . .
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 . .
CitedRegina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
CitedFinalarte Sociedade de Construcao Civil Ld, Portugaia Construcoes and Engil Sociedade de Construcao Civil SA v Urlaubs-und Lohnausgleichskasse der Bauwirtschaft etc ECJ 25-Oct-2001
ECJ Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude a Member State from imposing national rules guaranteeing entitlement to paid . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedAdeneler and Others v Ellinikos Organismos Galaktos ECJ 4-Jul-2006
A Directive was belatedly transposed into national law and after the date by which it ought to have been implemented. The question arose whether the obligation to interpret national law in accordance with the Directive existed from the date the . .
CitedSecretary of State for Defence v Elias CA 10-Oct-2006
The claimant said that a scheme drawn by the defendant for compensating British civilians interned by the Japanese during the second world war was indirectly discriminatory on racial grounds by requiring a national origin link with the UK. She had . .
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.
CitedBelfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
CitedFelix Palacios de la Villa v Cortefiel Servicios SA ECJ 16-Oct-2007
ECJ (Grand Chamber) Spain had legislated for compulsory retirement when it wanted to encourage recruitment; then abolished it when economic circumstances improved and it wanted to encourage people to stay in . .
CitedPetersen v Berufungsausschuss fur Zahnarzte fur den Bezirk Westfalen-Lippe ECJ 3-Sep-2009
ECJ Directive 2000/78/EC – Prohibition of discrimination based on age – National legislation providing for an age limit of 68 years for the exercise of a panel dentist – Objective for protecting the health of . .
CitedRosenbladt v Oellerking Gebaudereinigungsges mbH ECJ 12-Oct-2010
ECJ (Grand Chamber) Directive 2000/78/EC – Discrimination on the grounds of age – Termination of employment contract on reaching retirement age . .
CitedSeldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
CitedRoks and others v Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen ECJ 24-Feb-1994
The court considered a complaint of sex discrimination in the allocation of social security benefits, and said: ‘although budgetary considerations may influence a Member State’s choice of social policy and affect the nature or scope of the social . .
CitedJorgensen v Foreningen Speciallaeger and another ECJ 6-Apr-2000
Mrs Jorgensen, a specialist rheumatologist, complained about a rule which meant that, if she sold her practice, it would, because of its turnover, be treated as a part-time practice and subject to a cap on the fees it could receive from the Danish . .
CitedJorgensen v Foreningen Speciallaeger and another ECJ 6-Apr-2000
Mrs Jorgensen, a specialist rheumatologist, complained about a rule which meant that, if she sold her practice, it would, because of its turnover, be treated as a part-time practice and subject to a cap on the fees it could receive from the Danish . .
CitedWoodcock v Cumbria Primary Care Trust CA 22-Mar-2012
The claimant appealed against rejection of his claim of age discrimination. the claimant complained that the trust had deliberately failed to comply with a requirement to consult before declaring him to be redundant, so that his employment would . .

Cited by:

CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
At SC(1)O’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 . .
At SC (1)The Ministry of Justice v O’Brien EAT 4-Mar-2014
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
At SC (1)O’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 . .
CitedGilham v Ministry of Justice SC 16-Oct-2019
The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
Lists of cited by and citing cases may be incomplete.

Legal Professions, European, Employment, Discrimination

Leading Case

Updated: 21 April 2022; Ref: scu.470798