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Are Employment Judges 'Workers'

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[Thanks to Rachel Chambers of Cloisters for preparing this case summary]

The Court of Justice of the European Union in Luxembourg (CJEU) has handed down its decision today in O'Brien v Ministry of Defence.

Mr O'Brien - a part time judge - had challenged the UK government over its refusal to pay him a pension. The Government argued that as an "office holder" rather than a "worker" he had no such entitlement despite the fact that he was entitled to other worker rights such as maternity and sick pay. 

The Court decided in favour of Mr O'Brien and some 8,000 other part time judges. Part time judges far out number full time judges. 

The Court of Justice of the European Union found that whilst it was for member states to define who is a worker for the purpose of the Part Time Workers Directive, and in particular, to determine whether judges fall within that concept, such a determination must not arbitrarily exclude judges from the Directive's protection. 

To be excluded from protection the national court would have to find that part-time judges had a substantially different kind of relationship with, the Ministry of Justice, from that between full-time judges and the Ministry of Justice. 

In addition, the European Court observed that the fact that judges are labelled as "judicial office holders" rather than "employees" is insufficient in itself to exclude them from protection against discrimination. 

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. The Court noted that they had been told by the parties that recorders and full-time judges perform essentially the same activity.