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Thousands of part-time judges in line for a pension

Entitlement to retirement pension strengthens judicial independence, adviser says

21 November 2011

About 6,000 part-time fee-paid judges could be entitled to a pension following recommendations by a European Court of Justice’s adviser last Thursday (17 November).

Fee-paid judges, who sit between 15 and 30 days a year, are specifically excluded from the scope of the part-time work regulations, which implement the European and framework agreement and directive on part-time work.

Although they are paid the pro-rata equivalent of full-time judges, the result of the regulations is to deprive them from the pension entitlement available to their full-time counterparts.

One, Dermod O’Brien QC, who has been sitting as a recorder since 1978, nonetheless claimed a pension when he retired in 2005, saying he essentially performed the same work as full-time judges and should be entitled to the same benefits.

Advocate General Kokott said it was up to UK law to decide whether fee-paid judges were part-time workers for the purposes of the directive but that the national definition had to take account of EU law.

Edward Benson, a partner at Browne Jacobson who is acting for O’Brien, said the opinion – if followed by the court – would mean that part-time judges will be entitled to the same terms, including pensions and anything else, as full-time judges.

“The only way out of it for the government would be to prove the exclusion is objectively justifiable – but that’s not been their line of argument so far,” he told Solicitors Journal.

Benson added that the case would also have wider significance in relation to the interpretation of the term ‘worker’, which could extend to other areas, and the member states’ ability to rely on their own laws to exclude a range of individuals.

Giving her opinion in case C-393/10 Dermod Patrick O’Brien v Ministry of Justice, Advocate General Kokott said even though there was no autonomous EU-law notion for the term ‘worker’, the principle of effectiveness of European law nevertheless placed limits on the discretion of the member states in defining the concept.

Accordingly, “a member state may not remove at will certain categories of persons from the protection offered by the directive”.

Only where the nature of the work was substantially different could workers be excluded from the category of persons falling within the scope of this protection, she added, before moving on to examine the criteria a national court would have to consider.

She said a purely formal difference in classification was not relevant and it was therefore not sufficient that judges in Britain were regarded as office holders rather than employees.

More importantly, she also rejected the government’s argument that judicial independence demanded that judges should not be regarded as workers.

“It is difficult to determine how the rights granted by the framework agreement in general, and an entitlement to a retirement pension in particular, can jeopardise the essence of the independence of a judge,” she said. “On the contrary, an entitlement to a retirement pension strengthens the economic independence of judges, and thus ultimately also the essence of their independence.”

She also pointed out that fee-paid judges were entitled to sick pay, maternity or paternity pay, and similar benefits, and therefore appeared to enjoy social rights generally associated with workers.

“If judges are treated in the same way as workers in this respect, even though they cannot, formally, be regarded as workers, this can be seen as an indication that the nature of their office is not substantially different from what is regarded as an employment relationship according to national law,” she concluded.

A difference in treatment between full-time and part-time workers could nevertheless be lawful if it could be justified on objective grounds.

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Discrimination Courts & Judiciary