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I’m a Barrister at Atlantic Chambers looking at various aspects of Employment Law including new developments in case law and legislation.

Part-time Judges and Pensions in the European Court of Justice - O'Brien v Ministry of Justice (2012) Case C-393/10

The Court of Justice of the European Union (“CJEU”) have handed down its decision in O’Brien v Ministry of Justice (2012) Case C‑393/10 in response to a reference from the United Kingdom’s Supreme Court.

Mr O’Brien, a former part-time Judge (Recorder), had originally presented an Employment Tribunal claim alleging that he had been discriminated against under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Regulations”), on the ground that he was not entitled to a pro-rata judicial pension on retirement. Mr O’Brien claimed that as a fee paid part time Judge, he should be entitled to the same pension as full time Judges and salaried part time Judges.

The Court of Appeal decided that although the Claimant’s claim was presented within time, the Claimant was not protected by the Regulations as Judges were not ‘workers’ for the purposes of the Regulations.

Under Regulation 1(2) of the Regulations, a ‘worker’ is defined as

…an individual who has entered into or works under or (except where a provision of these Regulations otherwise requires) where the employment has ceased, worked under –

(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

The case was appealed to the Supreme Court, where the Court stated, at paragraph 27 of its Judgment, that ‘judicial office partakes of most of the characteristics of employment’. However the Supreme Court refused to express a concluded view as to whether Judges were workers, as domestic law could not be ‘readily disentangled from EU law’.

The Supreme Court therefore referred two questions to the CJEU, at paragraph 41:

  1. Whether it was for national law to determine whether or not judges as a whole are ‘workers who have an employment contract or employment relationship’ within the meaning of clause 2 (1) of the Framework Agreement, or whether there was a European Community norm by which this matter must be determined, and
  1. If judges are workers who have an employment contract or employment relationship within the meaning of clause 2 (1), whether it was 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 reaching its decision the CJEU held, at paragraph 41 of its Judgment, that ‘the sole fact that judges are treated as judicial office holders’ is insufficient to deny them rights under the European legislation. This is an established proposition in domestic law, see for example paragraph 21 of Lord Nicholls’ speech in the House of Lord’s case of Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28:

If ‘office’ is given a broad meaning, holding an office and being an employee are not inconsistent. A person may hold an ‘office’ on the terms of, and pursuant to, a contract of employment.

In answer to the Supreme Court’s first question, the CJEU ruled, at paragraph 68 of its Judgment, that it is for Member States to decide who is a worker, as long as that does not result in the arbitrary exclusion of that category of persons from the relevant European directive, Council Directive 97/81/EC of 15 December 1997 as amended by Council Directive 98/23/EC of 7 April 1998, from which the Regulations are derived. The Court held that any exclusion from the protection for part-time workers ‘may be allowed only if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers.’

In answer to the second question, the CJEU concluded that the relevant Directives precluded ‘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’.

The final ruling in this case will be for the Supreme Court, but it appears likely that when the hearing resumes, in light of the CJEU’s decision, the onus will be on the Ministry of Justice to objectively justify the distinction in pension payments between fee paid and full time judges.

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