The claimant, Mr O'Brien, was called to the Bar in 1962 and appointed Queen's Counsel in 1983. He worked as a Recorder from 1978 until his retirement in 2005, on his 65th birthday. It was then that he requested, relying on Directive 97/81 and the Part-Time Workers 22 Regulations, a retirement pension calculated as a proportion on a pro rata basis of that which a full-time Circuit Judge would be entitled to if he had retired on the same date. The Department of Constitutional Affairs rejected his request, considering that Mr O'Brien had no claim to a pension. The Supreme Court referred the following questions to the Court of Justice:

1. Is it for national law to determine whether or not judges as a whole are workers within the meaning of the Framework Agreement, or is there a Community norm by which this matter must be determined?
2. If judges as a whole are workers within the Framework Agreement, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?

In relation to the first question, the Court said that a Member State will not be permitted to narrowly define the term “worker” so as to exclude a certain category of persons from the protection of the Framework Agreement and the Directive. Should a Member State do this, it will have to establish that the nature of the employment relationship was “substantially different” between those excluded and those not. In respect of the second question, the Court said the Directive prevents one category of worker from being treated less favourably than the other.

The European Court has ruled that it is for the national laws of Member States to define workers but that exclusion from EU rights must be objectively justified: "...the Framework Agreement on part-time work must be interpreted as meaning that it precludes, for the purpose of access to the retirement pension scheme, national law from establishing a distinction between full-time judges and part-time judges remunerated on a daily fee-paid basis, unless such a difference in treatment is justified by objective reasons, which is a matter for the referring court to determine."

Part-time judges are held to be excluded from the pension scheme enjoyed by full-time judges. If held to be an "office holder" rather than a "worker" then the part-time judges would continue to be excluded. It is possible that the UK government may struggle with this, given the findings of the ECJ: "...The crucial factor is that they perform essentially the same activity. In that connection, the parties concerned, including the United Kingdom Government, explained at the hearing that recorders and full-time judges perform the same functions. It was explained that their work is identical and that they carry out their functions in the same courts and at the same hearings."

None of the above, however, makes any judges in the UK workers rather than office holders. The case will go back to the Supreme Court to determine.

Read the full CJEU decision here.