This article was first published in Lexis Nexis, 08 March 2012
Morayo Fagborun Bennett says the European Court of Justice’s (ECJ) decision in O’Brien v Ministry of Justice “sweeps away” many of the Ministry of Justice’s (MoJ) justifications for distinguishing between part-time and full-time judges. “The MoJ is going to have to think hard how it handles the case when it comes back to the Supreme Court,” she says. “It doesn’t lend itself to any easy settlement and there are thousands eagerly awaiting the outcome.”
Retired recorder Dermod O’Brien QC took his case to an Employment Tribunal in 2005, alleging that he had been discriminated against under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551, because 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.
Although successful at first instance, he lost on appeal to the Employment Appeals Tribunal on the ground that his claim was out of time. It was later ordered that the substantive issue and the time-limit issue should both be heard by the Court of Appeal as a test case. In December 2008, the Court of Appeal decided that his claim was presented within time but he was not protected by the regulations as judges were not “workers” for the purposes of the regulations.
Mr O’Brien appealed to the Supreme Court, which decided that “judicial office partakes of most of the characteristics of employment”. However it referred two questions to the ECJ on whether judges were “workers” because domestic law could not be “readily disentangled from EU law”.
Morayo explains that the Supreme Court essentially asked whether, under European law, member states could define for themselves the concept of “workers who have an employment contract or employment relationship” in Clause 2.1 of the Framework Agreement on part-time work or whether there was a “Community norm” which determined the issue.
“On the face of it, the judgment is quite clear that it is for member states to determine whether judges fall within that category as long as that does not lead to the arbitrary exclusion of that category of persons from the protection offered by Council Dir 97/81/EC and that framework agreement,” she says.
As the ECJ judgment states: “An exclusion from that protection may be permitted only if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees.”
The second question asked whether the Framework Agreement on part time working precludes national law from discriminating between full- and part-time judges, or between different kinds of part-time judges, for the purpose of restricting access to the retirement pension scheme.
Morayo says the ECJ ruled that, under Clause 4 of the agreement and the principle of non-discrimination, the different treatment of a part-time worker compared with a comparable permanent worker can only be justified on objective grounds. According to the ECJ, she continues, the concept of “objective grounds” does not allow unequal treatment according to a general abstract norm but must be in response to a “genuine need, be appropriate for achieving the objective pursued and be necessary for that purpose”.
The ECJ, which made it clear that budgetary considerations cannot justify discrimination, said that deciding whether the distinction was objectively justified in this case was now a matter for the Supreme Court. “Distinguishing between the two just because part-time judges are paid on a daily basis does seem arbitrary as they get all the benefits apart from a pension,” she says.
Future Legal Landscape
Morayo says the ECJ decision emphasises how important it is going to be for the MoJ to justify distinguishing between a recorder and a full-time circuit judge. Both do the same work and carry out the same functions in the same courts. Part-time judges are also entitled to sick pay, maternity pay and other benefits.
“The ECJ has now made it clear the MoJ can’t argue the two have different careers just because a recorder is paid on a daily basis and can still practice as a barrister. They also cannot refuse to pay them pensions because of budgetary considerations or because it would undermine their judicial independence.”
If Mr O’Brien wins, she notes, the case will have a substantial impact on the MoJ’s budget. “The MoJ thought it had managed to opt out of paying part-time judges a pension. Even though the pensions will be paid on a pro-rata basis, it will still mean a lot of extra money coming out of the kitty.”