O'Brien v Department for Constitutional Affairs

A judicial office-holder is not a worker under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 merely because the office is part-time and fee-paid. Judicial office is not ordinarily performed under a contract of employment or a contract to perform services for another party. Nor does the holder fall within Crown employment, since that construction would undermine judicial independence. Regulation 17 is therefore a precautionary exclusion rather than a partial derogation from protection otherwise available to judges. A Member State was also entitled to exclude part-time judges within the discretion allowed by the Framework Agreement. An Employment Tribunal’s extension of time is not unlawful merely because its reasons use imperfect language where, read as a whole, they show that the correct just-and-equitable test was applied.

The appellant was a Recorder until reaching 65 on 31 March 2005. He claimed that exclusion from a judicial pension, compared with full-time judges, constituted less favourable treatment under the PTWR and the underlying Framework Agreement.

The Employment Tribunal found the claim out of time but extended time under Regulation 8(3). The Employment Appeal Tribunal allowed the Department’s appeal and dismissed the appellant’s cross-appeal, holding that the Employment Tribunal had applied the wrong approach. The Court of Appeal considered the time issue and, by agreement, the substantive effect of Regulation 17. The central questions were whether the Employment Tribunal had erred in law and whether a fee-paid Recorder could rely on the Directive despite Regulation 17.

The appeal was from the Employment Appeal Tribunal decision UKEAT 013907ZT.

1. Time limit. The time-limit appeal was allowed. The Employment Appeal Tribunal was wrong to find that the Employment Tribunal had relieved the appellant of the burden of showing that an extension was just and equitable. The Employment Tribunal had stated the correct principle and, read as a whole, its reasons showed that it had weighed all the circumstances and was satisfied that the claimant had met that burden. Imperfect wording did not establish an error of law.
2. Time began to run when the appellant’s Recordership ended on 31 March 2005. The later failure to pay a pension and the Department’s later correspondence were consequences or responses to the alleged exclusion, rather than the discriminatory act identified in the claim.
3. Scope of the PTWR. Regulation 1(2) defines a worker by reference to a contract of employment or another contract under which personal work or services are undertaken for another contracting party. A statutory judicial office-holder does not ordinarily fall within that contractual language. Regulation 12’s reference to Crown employment cannot include the discharge of judicial functions under or for the purposes of a government department, since that would be inimical to judicial independence.
4. Regulation 17 was a precautionary provision prompted by Perceval-Price v Department of Economic Development. It did not carve daily fee-paid judges out of a wider protected class of judicial workers. In 2000 there were no salaried part-time judges. In any event, the Directive 97/81/EC and the Framework Agreement allowed Member States to exclude part-time judges, provided the definition of worker was not so narrow that the Framework Agreement was deprived of practical validity.
5. The Court declined to remit the case for a substantive hearing because the PTWR claim was bound to fail. The order allowed the time-limit appeal, declared that the appellant was not protected by the PTWR, and remitted the case to the Employment Tribunal with a direction that the PTWR application be dismissed. A reference to the European Court of Justice was unnecessary.

• Court of Appeal (Civil Division): [2008] EWCA Civ 1448. Allowed the time-limit appeal, declared that the appellant was not protected by the PTWR, and remitted the PTWR application for dismissal.
• Employment Appeal Tribunal: UKEAT 013907ZT. Allowed the Department’s appeal against the extension of time and dismissed the appellant’s cross-appeal concerning when time began to run.
• Employment Tribunal: Found the claim out of time but extended time under Regulation 8(3).