Case Preview: O’Brien v MoJ  UKSC 34, Further Hearing
07 Friday Sep 2012
On the 4 July 2012 the Supreme Court had a further hearing in the case of O’Brien v Ministry of Justice. The original case was heard in 2010 (the case preview is here). The question at issue was whether Recorders, (part-time judges in the Crown Court and county courts) should be granted retrospective admission to the Judicial Pension Scheme. Dermod O’Brien QC, who sat as a Crown Court Recorder for 27 years, challenged the decision by the Ministry of Justice not to grant him a judicial pension on his retirement because he was a part-time judicial office holder paid a daily fee. A full time judicial office holder would have received a pension.
The Supreme Court ordered a referral to the CJEU when it gave its earlier decision on 28 July 2010, as Mr O’Brien had argued that the exclusion of fee-paid Recorders was incompatible with the Part-Time Workers Framework Directive (97/81/EC), and that the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 had not properly implemented the Directive into UK law. The CJEU held that the exclusion was incompatible with EU law (see the comment on the AG’s Opinion here), stating that:
“An exclusion from that protection may be allowed only if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers.”
The hearing on the 4th was held in light of these facts. If the Court rules in favour of Mr O’Brien it could have a significant impact on the judicial pension pot. A number of judges sit part time, and so if it is found that they are eligible for a judicial pension then it will add to the already existing pressure on the Ministry of Justice budget.