press release
Justice for judges
28 July 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.
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.