O’Brien claimed he was discriminated against by being denied a pension pro rata to that of full-time circuit judges.  The Ministry of Justice (MoJ) argued that O’Brien was paid a fee not a salary and was therefore an ‘office holder’ rather than a ‘worker’ despite the fact he had other
rights, such as sick pay and paternity leave.  The ECJ held that, while it is up to individual countries to decide who is a ‘worker’ under the Part Time Workers’ Directive, any decision must not arbitrarily exclude judges. Such an exclusion could only be justified if the “relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling under the category of workers”.

Rachel Chambers, an employment barrister from Cloisters, said: “Importantly the Court observed that the principle of the independence of the judiciary was not damaged by the fact that judges work under terms and conditions of service.

“The UK government had argued that the special status of judges and the need to enshrine their independent judicial function meant they could not be regarded as under the control of an employer. However the Court did not find that the importance of this work was in any way diminished by categorising them as workers.

“A distinction between full-time judges and part-time fee-paid judges is only lawful if it is justified by objective reasons. The case will return to the UK courts for this to be determined, however the court commented that it was crucial to note that Recorders and full-time judges perform essentially the same activity.   “Their work is identical and they carry out their functions in the same courts and at the same hearings.” An MoJ spokesperson said: “We are considering the judgment, however we cannot comment further as the litigation is ongoing.”