Case Comment: O’Brien v The Ministry of Justice  UKSC 6
28 Thursday Feb 2013
The Supreme Court’s second judgement in this matter marks the end of the long-running part-time judges’ pension saga. In its judgement the Supreme Court essentially approve the “provisional” views they expressed in their earlier judgment as to why Mr O’Brien was a worker within Regulation 1(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Of particular interest to all part-time judges and recorders will be the view of the court, as expressed in Lord Hope and Lady Hale’s judgment, that: The court does not accept that the terms and conditions laid down by the Lord Chancellor for recorders do not give a true picture of the reality of the work that is done by a recorder.
Interestingly, the Supreme Court felt that the objective justification of a directly discriminatory measure (as is required under the Part-time Workers Directive) was an issue which it would be appropriate for them to consider, rather than remitting the case back to the Employment Tribunal.
When considering objective justification, Lord Hope and Lady Hale, giving judgment for the Supreme Court, expressed the view that it was “clear from the history that, insofar as there was a reason for ensuring that fee-paid part-time judges were not covered by the 2000 Regulations, it was to save cost.” It is trite law that costs alone is not sufficient to justify a direct discriminatory measure.
The Supreme Court concluded that the different treatment of part-time judges could not be justified on objective grounds , and therefore there was no reason for departing from the pro-rata principle. Mr O’Brien was therefore entitled to his judicial pension, and the quantum of this pension will now be calculated by an Employment Tribunal.