New Judgment: O’Brien v The Ministry of Justice  UKSC 6
06 Wednesday Feb 2013
On appeal from:  EWCA Civ 1448
The appellant, a retired barrister who also had sat as a recorder, challenged his lack of entitlement to a judicial pension – the office of recorder was not a qualifying judicial office under the relevant UK legislation, and he was held to be an “office holder” rather than a “worker” under the Framework Agreement on part-time work. In 2010 the Supreme Court referred the matter to the CJEU as domestic law could not be readily disentangled from EU law on the issue. The CJEU’s preliminary ruling stated that it was ultimately for the Supreme Court to decide on the worker issue, and provided guidance on whether the difference in treatment of recorders could be objectively justified.
The Supreme Court unanimously allowed the appeal. The CJEU’s preliminary ruling had clarified that the term “worker” in the Framework Agreement was used to draw a distinction from the self-employed; and it was held that the work a recorder undertakes is of a different character to that of a self-employed person, no self-employed person would subject themselves to the rules for appointment and removal of recorders, and the way recorders’ work is organised for them is in common with all other part-time judges. In relation to the objective justification issue, the aims of the Ministry of Justice amounted to nothing more than blanket discrimination.