O’Brien v Ministry of Justice (Council of Immigration Judges intervening)

23 Jul 2012

[2010] UKSC 34; [2010] 4 All E.R. 62 (SC No 1)

[2012] 2 C.M.L.R. 25 (CJEU)

9 July 2012 (Preliminary Ruling, SC No 2)

The Supreme Court has determined that a part-time judge falls within the scope of the Part-time Workers Directive, moving fee paid part-time judges a significant step closer to obtaining pension rights.

This was the second hearing in the Supreme Court. It followed a reference to the Court of Justice of the European Union.

At the second hearing in the Supreme Court, the Ministry of Justice argued that both the issue of whether a part-time judge was a “worker” and the question of objective justification should be remitted to the Employment Tribunal.

The Supreme Court will give reasons for its determination that Mr O’Brien was a part-time worker at a later date.

On the issue of objective justification, the Court has not directed an immediate remission to the Employment Tribunal. Remission will be appropriate only if there are significant disputed issues of fact to be determined. Directions have been given to the parties which are intended to enable that issue to be resolved and to make progress with the determination of the appeal. The Council of Immigration Judges has been given permission to serve witness statements and a further supplementary written case.

There will be a further hearing of the appeal on 21 November 2012 to determine what (if any) issues should be remitted to the Employment Tribunal and to decide any issues which are not remitted.

Ian Rogers appeared for the Council of Immigration Judges in the Supreme Court and in the Court of Justice of the European Union.

Ian has also drafted claims for a large number of fee paid part-time judges in the Employment Tribunal under the Public Access Scheme. Short time limits apply to such claims.