Part-time judges are entitled to pensions, Supreme Court rules

The Supreme Court has ruled in a strongly-worded judgment this morning that denying pensions to part-time judges amounts to “blanket discrimination”.

The case was brought by Dermod O’Brien QC, who sat as a part-time recorder for 27 years and was refused a pension when he retired in 2005.

Lord Hope and Lade Hale said, in a joint ruling: “Of course there is not a bottomless fund of public money available. Of course we are currently living in very difficult times.

“But the fundamental principles of equal treatment cannot depend upon how much money happens to be available in the public coffers at any one particular time or upon how the state chooses to allocate the funds available between the various responsibilities it undertakes.

“That argument would not avail a private employer and it should not avail the state in its capacity as an employer.

“Even supposing that direct sex discrimination were justifiable, it would not be legitimate to pay women judges less than men judges on the basis that this would cost less, that more money would then be available to attract the best male candidates, or even on the basis that most women need less than most men.”

O’Brien argued he essentially performed the same work as full-time judges and should be entitled to the same benefits.

The Supreme Court ruled in July last year that part-time judges were ‘workers’ for employment law purposes, following a reference to the ECJ.

UK regulations on the rights of part-time workers, which implement the EU’s part-time workers directive, currently exclude part-time judges because they are ‘office holders’.

The Supreme Court held a separate hearing at the end of November on whether discrimination against part-time judges could be objectively justified, on which today’s ruling is based.

Delivering judgment on behalf of the court in O’Brien v Ministry of Justice [2013] UKSC 6, Lord Hope and Lady Hale said the Ministry of Justice had “struggled to explain” what they were seeking to achieve by denying a pension to part-timers.

They said one aim appeared to be to give a greater reward to those who needed it most.

“An employer might devise a scheme which rewarded its workers according to need rather than to their contribution, but the criteria would have to be precise and transparent.

“That is not so here. Some part-timers will need this provision as much as, if not more than, some of the full-timers.”

The justices said that this objective amounted to nothing more than “blanket discrimination” between different classes of worker.

The Supreme Court allowed O’Brien’s appeal and remitted the case to the employment tribunal to determine the amount of the pension to which he is entitled.

Lords Clarke, Dyson and Walker contributed to the judgment.