O’Brien v Ministry of Justice (Formerly the Department for Constitutional Affairs)

The Supreme Court considered whether fee-paid part-time judges fall within the scope of the Part-time Workers Directive (Council Directive 97/81/EC) as implemented by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, and whether the domestic exclusion of fee-paid judges (Regulation 17) is compatible with EU law. The Court identified that the Framework Agreement uses the phrase "employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State" (clause 2.1), so domestic law is relevant to the coverage of the Directive, but domestic law cannot be interpreted or applied in a way that frustrates the directive's objectives (Marleasing principle and recital (16) of the Directive).

Because the questions of domestic status of judicial office and the proper interpretation of the Framework Agreement are closely entangled, and because the jurisprudence of the Court of Justice gives limited and partly conflicting guidance, the Supreme Court declined to reach a concluded domestic determination on whether judges are "workers" for the purposes of the Directive. Instead the Court referred questions of EU law to the Court of Justice under Article 267 TFEU about (i) whether national law or a Community norm determines whether judges are within clause 2.1 and (ii) whether Member States may distinguish between full-time and part-time judges or between kinds of part-time judges in respect of pensions. The Supreme Court emphasised the importance of judicial independence and noted the significant growth of the part-time judiciary in England and Wales, but expressed no final view on the substantive claim pending the preliminary ruling.

Background and parties

• The appellant, Mr O’Brien, had been a recorder (a part-time judge) from 1978 until his retirement in 2005. He complained that fee-paid part-time judges are excluded from judicial pensions and other protections by Regulation 17 of the Part-time Workers Regulations 2000 and relied on the Part-time Workers Directive (Council Directive 97/81/EC) and its Framework Agreement.
• The respondent was the Ministry of Justice (formerly the Department for Constitutional Affairs). The Council of Immigration Judges intervened.

Procedural history

Mr O’Brien began proceedings in the Employment Tribunal in 2005. The Department initially succeeded on a time-bar point in the Employment Appeal Tribunal, but the Court of Appeal (Chancellor, Smith and Maurice Kay LJJ) [2008] EWCA Civ 1448 allowed Mr O’Brien’s appeal on the time limit issue and directed the Employment Tribunal to dismiss the claim on the substantive issue. Mr O’Brien obtained permission to appeal to the Supreme Court, which heard the case on 14–15 June 2010.

Nature of the claim and relief sought

The claim challenged the disapplication in Regulation 17 of the 2000 Regulations that excluded fee-paid judicial office-holders from the Regulations' protection, including entitlement to pensions. Mr O’Brien sought to establish that fee-paid part-time judges fall within the meaning of "workers who have an employment contract or employment relationship" under clause 2.1 of the Framework Agreement and thus are entitled to protection against less favourable treatment.

Issues framed by the Court

1. Whether national law should determine whether judges as a whole are "workers who have an employment contract or employment relationship" within clause 2.1 of the Framework Agreement, or whether a Community norm governs that determination.
2. If judges are within clause 2.1, whether national law may lawfully discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges, in the provision of pensions.

Court’s reasoning

The Court analysed the PTWD, the Framework Agreement (in particular clauses 2 and 4), and the domestic Regulations made under section 19 of the Employment Relations Act 1999. It observed the special features of judicial office, including the requirement of judicial independence under Article 6 ECHR, and noted the large increase in part-time judges. The Court reviewed relevant authorities (including Percy, Perceval-Price, Lawrie-Blum, Jaeger, Wippel and Del Cerro Alonso) and explained that while clause 2.1 imports national definitions into scope, domestic definitions cannot be allowed to frustrate the Directive's purpose (recital (16)).

Given conflicting elements in the Court of Justice jurisprudence and the close interdependence of domestic and EU questions, the Supreme Court concluded that it could not finally determine the substantive issue. It therefore made a preliminary reference to the Court of Justice under Article 267 TFEU seeking authoritative guidance on the interpretation and application of clause 2.1 and on whether national law can make the contested distinctions in pension provision.

Wider context

The Court noted the increasing reliance on part-time judges in the English system and drew attention to the potential significance of permitting a national exclusion that might operate ad hoc to deny protections to a defined category of part-time judicial office-holders.

Appeal allowed in part. The Supreme Court held that because the domestic-law questions about the status of judges as "workers" and the compatibility of Regulation 17 with the Framework Agreement are inseparable from questions of EU law, it was necessary to refer preliminary questions to the Court of Justice under Article 267 TFEU. The Court therefore did not decide the substantive issue and expressed no final view on whether judges are "workers" under the Directive; the reference seeks clarification whether national law or a Community norm determines coverage and whether distinguishing between full-time and part-time judges (or between kinds of part-time judges) in pension provision is permissible.

Employment Tribunal (2005) → Employment Appeal Tribunal (initially the Department succeeded on time limit ground) → Court of Appeal [2008] EWCA Civ 1448 (Chancellor, Smith and Maurice Kay LJJ) allowed Mr O’Brien’s appeal on the time limit point but directed the Employment Tribunal to dismiss the substantive claim → Appeal to the Supreme Court which referred questions to the Court of Justice under Article 267 TFEU.