O’Brien v Department for Constitutional Affairs [2008] EWCA Civ 1448 concerned a part-time Recorder who sat from 1978 until he retired in 2005. Recorders usually continue in practice as a solicitor or barrister while sitting part-time.

Dermot O’Brien was ineligible for a pro-rata’d judicial pension because of a regulation excluding judicial office holders who are remunerated on a daily fee-paid basis. He claimed this amounted to unlawful discrimination against him as a part-time worker.

He argued that the relevant regulation, reg 17 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, was incompatible with the Part-time Workers Framework Directive 97/81/EC, and should be disapplied. However, Lord Justice Maurice Kay and two judges found that judicial office holders are not “workers” in the sense of the regulation, and so there was no incompatibility.