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Pension discrimination case decision handed down by Supreme Court

Part-time judge was denied a pension on retirement

Posted on 07 February 2013

The Supreme Court has today handed down its long-awaited decision in the case of O’Brien v Ministry of Justice.
A part time judge has won his discrimination claim in the Supreme Court against what he claimed was discrimination after he was denied a pension on retirement.

Dermot O’Brien was a fee paid recorder. Fee paid judges are part time and, unlike their salaried colleagues, are excluded from the judicial pension scheme (though they are entitled to sick pay and other benefits).

Mr O’Brien brought a claim for unlawful discrimination on the ground that he had been less favourably treated than comparable full time / salaried judges, because of his part time status, as when he retired he was not entitled to a pension. He argued that this was not justified.
The EU Part Time Workers Directive (‘PTWD’) outlaws discrimination against part time workers. It was implemented into UK law by the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which only cover workers and employees.

A key issue in Mr O’Brien’s case was whether fee paid judges are ‘workers’ for these purposes. The Supreme Court held in July last year (following a reference to the Court of Justice of the European Union), that fee paid judges are covered by the part time discrimination legislation. The question of whether the differential treatment of fee paid and salaried judges was justified was then considered by the Supreme Court at a hearing late last year.
In its ruling today the Supreme Court found in Mr O’Brien’s favour. Noting that the MoJ had not thought through the rationale for its differential treatment of part time and full time judges in respect of pensions at the time, it held that while the reasons now put forward, such as the desirability of attracting good candidates for full time positions and distributing resources fairly, could amount to legitimate aims, there was no convincing evidence that the exclusion of part timers from the pension scheme would achieve those aims or that it was proportionate.  Rather, it amounted to “nothing more than a blanket discrimination between two classes of worker.” The Court emphasised that policy decisions “must be consistent with the principles of equal treatment and non-discrimination.”
The case has been sent back to the Employment Tribunal to decide the amount of the pension to which Mr O’Brien is entitled.
Chris Benson from the employment team at law firm Leigh Day said:

“The Supreme Court’s decision today is very welcome. In rejecting the Ministry of Justice’s attempts to justify the exclusion of Mr O’Brien from the judicial pension scheme because of his part time status, the Court emphasised that such discrimination will only be permitted where there is cogent evidence that it is a proportionate way of achieving a legitimate objective. The MoJ could not show this and Mr O’Brien is therefore entitled to  a pension like his full time colleagues.

“While the decision relates to recorders, it opens the gateway for all affected judges - including the large number sitting in tribunals -  to challenge their arbitrary exclusion from the pension benefits enjoyed by their full time counterparts who perform exactly the same role.”
The employment team at Leigh Day has already been approached by a number of part time judges seeking to bring legal proceedings in respect of their pension entitlements, and we expect many more may do so in the wake of the Supreme Court’s decision. We are happy to speak in confidence to anyone who may be affected by the decision.  There are some compelling reasons for putting in claims sooner rather than later regardless of retirement date, and it is therefore advisable to seek advice as soon as possible. For more information please contact Chris Benson.