Part-time judges are ‘workers’, Supreme Court rules

Justices follow Luxembourg invitation to view part-time judges not as 'office holders' but as 'workers' entitled to a retirement pension

Thousands of part-time judges should be in line for a retirement pension following a ruling by the Supreme Court yesterday that they were ‘workers’ for employment law purposes.

The case comes after a decision by the European Court of Justice suggesting that part-time judges performed the same function as their full-time counterparts and should be entitled to the same benefits.

Ruling in Dermod O’Brien QC v Ministry of Justice the justices said the former judge was “at the material time a part-time worker” under EU and UK law provisions on part-time work.

The Supreme Court has decided not to remit the case to the employment tribunal and consider remaining points of fact at a further hearing on the appeal on 21 November.

Only if there are “significant disputed issues of fact to be determined” in respect of objective justification will the court remit the case back to the tribunal, the justices said.

UK regulations on the rights of part-time workers, which implement the EU’s part-time workers directive, currently exclude part-time judges because they are ‘office holders’.

In March, the European Court of Justice said in Case C-393/10 O’Brien v Ministry of Justice that such exclusion would only be lawful if the relationship between judges and the Ministry of Justice was “by its nature substantially different from that between employers and their employees falling under the category of workers”.

The court said governments could provide their own definition of the term ‘workers’ but that their approach could not undermine the overall objective in European law of offering greater protection to part-time workers.

Member states’ discretion in this respect was not “unlimited”, it said, before adding “a member state cannot remove at will certain categories of persons from the protection offered by that directive and the framework agreement on part-time work”.

Holding judicial office was “insufficient in itself” to exclude judges from the protection in the directive, the court went on, as it proceeded to list the factors the Supreme Court should consider when assessing whether the exclusion could be justified.

The Luxembourg court pointed out that part-time judges, like ordinary employees, were required to work during defined periods of time.

It also noted that they were already entitled to other benefits available to their full-time counterparts such as sick pay and maternity or paternity pay.

Considering entitlement to a retirement pension, the court said this was covered under ‘employment conditions’ in the directive.

Just because part-time judges and recorders retained the opportunity to practise as barristers didn’t mean they weren’t “in a comparable situation” to full-time judges, the court concluded, as they performed “essentially the same activity”.

Referring the question of whether there was, in practice, an inequality of treatment not justified on objective grounds to the Supreme Court, the ECJ reminded the parties that budgetary considerations were no justification to discrimination.

The case was brought by Dermod O’Brien QC, who sat as a recorder for 27 years and was refused a pension when he retired in 2005.

Mr O’Brien argued he essentially performed the same work as full-time judges and should be entitled to the same benefits.

Rachel Chambers, an employment law barrister from Cloisters, said it was important that the ECJ found the principle of judicial independence was not damaged by the fact that judges work under terms and conditions of service.

“Given the judgment it seems likely that the remaining points to be determined back in the UK will be resolved in Mr O’Brien’s favour, bringing long hoped for pension relief for him and 8,000 other part-time judges,” she said.