[Thanks to Jessica Denton, Legal Assistant to Gerard McDermott QC for preparing this case summary]
Yes, says the Supreme Court, in the long-running battle of O'Brien v Ministry of Justice.
Mr O'Brien sat as a recorder for 27 years. On his retirement he argued that he was entitled to receive a judicial pension for his work as a recorder pro rata temporis. The Ministry of Justice contended that recorders were 'office holders' and not workers, and thus did not come within the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which provide that a part-time worker should not be treated less favourably than a full-time colleague.
When the case reached the Supreme Court, following a reference to the CJEU
, there were two issues to be decided: (1) whether the relationship between the MoJ and judges is substantially different from that between employers and workers (the worker issue); and (2) whether the difference in treatment of recorders as compared to full-time or salaried judges is justified by objective reasons (the objective justification issue).
The Supreme Court ruled that recorders were 'workers', because they are effectively under the control of another whilst working in that capacity. There was no objective justification for the different treatment between part-time and full-time judges, because that would amount to blanket discrimination and undermine the principles of the European legislation. Although the MoJ argued that paying pensions to part-time workers would reduce the pension pot available for full-time judges, the Supreme Court stated clearly that the principle of equal treatment cannot take into account that a worker's pension is to be paid from State funds.