Justice for judges: Supreme Court refers Part-time judges dispute with Ministry of Justice to the European Court of Justice 

28 Jul 2010 

The Supreme Court has today referred a case against the Ministry of Justice concerning its refusal to grant pensions to thousands of part-time judges to the European Court of Justice: O'Brien v. Ministry of Justice. The case affects up to about 8,000 part-time judges. Please see link for Judgment

Leading European employment barristers, Robin Allen QC and Rachel Crasnow of Cloisters (www.cloisters.com), instructed by Edward Benson of solicitors Browne Jacobson (www.brownejacobson.com), represented retired Recorder (part-time judge) Dermod O'Brien QC in his claim that he was entitled to a judicial pension on retirement pro rata to the pension of full-time circuit judges. He alleges he has been discriminated against and that this is unlawful under European law as set out in the Part-time Workers Directive.

Mr O'Brien was one of about 8,000 fee-paid part-time judges that far outnumber full time judges. They have been denied pensions simply because they work part-time and their remuneration is called a "fee" rather than a "salary". Part-time judges are paid pro rata to full time judges and are entitled to all the same benefits such as maternity and sick pay.

However the Ministry of Justice and its predecessor departments have always refused to pay pensions to these fee-paid judges. The Ministry of Justice has argued that this discrimination against part-time workers is not prohibited by European law, asserting that neither Mr O'Brien nor any judge "works" for, or is in an employment relationship with, anyone.

The Supreme Court has rejected this argument and has agreed with Mr. O'Brien that, although all judges hold an "office", their relationship with the Ministry of Justice is substantially similar to employment as they are expected to work during defined time periods and are not free agents in the same way as the self-employed. The Supreme Court is also most concerned about the specific targeting of fee-paid judges for discriminatory treatment in relation to pensions. The Court is now concerned to know what are the implications of this in European law.

Dermod O'Brien QC was a part-time judge from 1978 until his retirement at the age of 65 in 2005. He was paid a daily fee, as all Recorders are, rather than a salary basis. On retirement he requested a pension but this was refused on the basis that Recorders were said to fall outside the category of judicial office holders to whom pensions are payable.

The European Court is now asked by the Supreme Court to decide whether it is open to national law to determine which employees are considered as workers for the purposes of the Directive or if this must be determined at European Union level.

Former Chair of the Employment Law Bar Association, Daphne Romney QC of Cloisters, commented:

"It's unusual for the key players in the justice system to question just how justly they themselves are being treated. There are two important legal points for clarification in Mr O'Brien's case.

"First there is the question of whether he (and others in similar roles) are being discriminated against under the European Part Time Workers Directive; secondly the Supreme Court is asking whether these office holders should in fact be classed as "workers", because the Supreme Court has concluded that their office has many of the characteristics of employment.

"The question why part-time judges are being treated so much less favourably by the MOJ than their full-time or salaried counterparts is significant from both a European and domestic law perspective."

Daphne Romney QC added: "Dermod is one of thousands of part-time judges remunerated on this fee-paid daily basis. The judgment in this case will clarify their - and indeed other office-holders' - pension rights. It is now expected that many of the several thousand present and retired part-time judges will also wish to start proceedings against the Ministry of Justice to preserve their position pending the judgment of the European Court of Justice."

Edward Benson of Browne Jacobson said: "I am delighted for Dermod O'Brien and imagine that many other part-time judges will be supporting him and may wish to consider bringing claims themselves."

A judgment from the Court of Justice is not expected until 2012.

For further information contact:
Danielle Anthony

danthony@cloisters.com
Mobile: 07715 496 512
www.cloisters.com
Cloisters,
1 Pump Court, Temple EC4Y 7AA

Lakhbir Rakar
lrakar@brownejacobson.com
Phone : +44 (0)121 237 3926
Mobile : +44 (0)7919 913695
www.brownejacobson.com
Browne Jacobson LLP
44 Castle Gate, Nottingham, NG1 7BJ