Advocate General queries scope for justifying differential treatment of part-time judges

17 November 2011

Advocate General Kokott has handed down her decision today in O’Brien v Ministry of Justice.  

Mr O’Brien is a barrister and Queen’s Counsel. He was appointed as a recorder in 1978 and sat until 31 March 2005 and was represented by Cloisters' barristers Robin Allen QC and Rachel Crasnow.

He then claimed a pension equivalent to that of a full-time judge who essentially performed the same work. He was refused this by the United Kingdom Ministry of Justice. Mr O’Brien challenged the refusal of the pension, relying upon the Part-Time Worker’s Directive (PTWD) and claiming that the exclusory provision Regulation 17 in the Part-Time Workers Regulations (PTWR) was contrary to EU law.

In July 2010, the Supreme Court stayed its proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is it 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 is there a Community norm by which this matter must be determined?

(2)      If 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, is it 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?’

Following a hearing before the Court of Justice of the European Union (CJEU )in September 2011, on 17 November Advocate General Kokott delivered her Opinion, clearly preferring Mr O’Brien’s arguments to those of the UK Government.

 

She noted that Member States must guarantee the result imposed by EU law and that EU instruments need to be effective. This principle applied to the PTWD.

As to when a Member State may exceed the bounds of the discretion accorded to it in defining the term ‘worker’ and remove a professional category from the protection offered – the question here was whether the nature of a judge’s employment relationship is substantially different from that between employees falling, according to national law, within the category of ‘workers’ and their employers.

The AG said she could identify for the national court criteria which are to be taken into consideration in this task. Firstly purely formal grounds such as a mere label cannot justify the exclusion of a category of persons from the PTWD’s protection.

So the MOJ couldn’t rely upon the classification of “office-holders” nor upon the issue of the number of persons affected to determine the status as a worker or otherwise, since such criteria would have no connection with the nature of the employment relationship.

The AG considered the contrast between a worker and a self-employed person. It noted that judicial independence in terms of the essence of an activity is not an appropriate criterion for justifying the exclusion of a professional category from the scope of the PTWD.

The AG noted that judges appear to enjoy social rights generally associated with workers and that the way they are treated in this respect is an indication that the nature of their office is not substantially different from what is regarded as an employment relationship according to national law.

The AG also said it was not permissible for national measures to discriminate between full-time and part-time judges, or between different kinds of part-time judges, in the provision of pensions.

The UK Government’s argument that a difference in treatment between recorders and full-time judges can be explained by the fact that fee-paid judges are able to continue their other careers in the legal profession or in academia, whilst salaried part-time judges are not able to do this, was not accepted in itself as a sufficient justification, but the AG said rightly that it will be for the referring court (the Supreme Court) to examine the question of the possible justification of a difference in treatment between part-time and full-time judges (along with the issue of discrimination between different kinds of part-time employment).

However the AG did say that she doubted the rightness of the UK’s argument that the differential treatment of part-timers among themselves was not contrary to EU law.

Before the domestic court considers if the PTWD precludes a Regulation 17 of the PTWR which discriminates between full-time and part-time judges and among part-time judges in the provision of pensions, and considers whether the treatment accorded to Mr O’Brien was objectively justified, we must await the Court’s judgment. This is expected in several months. However the sense of this Opinion is that Mr. O’Brien’s arguments may well be successful. How the MOJ seek to justify their treatment of him remains to be seen.

Coverage in the Solicitors Journal can be found here