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Part-time judges entitled to pension

1 March 2012

Thousands of part-time judges should be eligible for a retirement pension after the European Court of Justice suggested there appeared to be no justification to treat them differently from other part-time workers.

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’.

Ruling today in Case C-393/10 O’Brien v Ministry of Justice, the Luxembourg judges said 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.

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