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

Whether a judicial office-holder is a part-time worker cannot be determined solely by the formal classification of the office under domestic law. Although national law is relevant under clause 2(1) of the Framework Agreement on part-time work, it cannot define the protected class so narrowly that it frustrates the Agreement’s purpose of eliminating discrimination.

Holding judicial office does not necessarily exclude an employment relationship. Judicial independence is essential, but judges remain subject to organised sittings and terms of service and their office has many characteristics of employment. EU law did not clearly determine whether judges fell within the Agreement or whether pension distinctions between full-time, salaried part-time and fee-paid part-time judges were permissible. Those questions therefore required a preliminary ruling.

The appellant served as a fee-paid recorder from 1978 until 2005. Unlike full-time and salaried part-time judges, fee-paid part-time judges had no entitlement to a judicial pension. He claimed that this amounted to unlawful less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the EU Framework Agreement on part-time work.

The Employment Tribunal initially rejected objections to the claim. Following further proceedings, the Court of Appeal in [2008] EWCA Civ 1448 allowed the appellant’s appeal on the time-limit issue but directed that his substantive claim be dismissed.

The central questions were whether judges were workers with an employment contract or relationship for the purposes of clause 2(1) of the Framework Agreement, and whether EU law permitted distinctions in pension provision between full-time and part-time judges or between different classes of part-time judge.

1. Questions referred to the Court of Justice. Lord Walker delivered the judgment of the Court. The Supreme Court did not finally determine the substantive appeal because the relevant domestic and EU law questions could not readily be disentangled. A preliminary ruling under article 267 of the Treaty on the Functioning of the European Union was necessary.

2. The holding of an office does not necessarily exclude employment, particularly where legislation adopts a broad definition of employment. Employment may extend beyond the traditional master-and-servant relationship, and the degree of control exercised over the individual is consequently less important. The reasoning in Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73 supported those principles.

3. Judicial independence requires judges to decide cases without direction from any superior authority. Nevertheless, judges are subject to organised sittings, defined periods of work and other terms of service. They are not free agents able to work whenever they choose. The Court approved the observations in Perceval-Price v Department of Economic Development [2000] IRLR 380 and considered that judicial office has most of the characteristics of employment. It expressed no concluded view on whether judges generally, or the appellant in particular, were workers under the domestic Regulations.

4. Clause 2(1) of the Framework Agreement makes national law relevant when identifying an employment contract or relationship. National law cannot, however, oust the principles underlying the EU measure or frustrate its purpose. The prohibition of discrimination in clause 4 is a particular expression of the general principle of equality. That principle is at least as important as the protection of workers’ health and safety considered in the working-time authorities.

5. The Court of Justice authorities did not clearly establish the permissible extent of national departure from the EU norm. Particular concern arose because regulation 17 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 appeared deliberately to exclude fee-paid part-time judges while full-time and salaried part-time judges doing the same or similar work could receive pensions.

6. The Court referred two questions: whether national law or an EU norm determines if judges are workers within clause 2(1); and, if judges are workers, whether national law may discriminate in pension provision between full-time and part-time judges or between different kinds of part-time judge.

1. United Kingdom Supreme Court: The Court referred questions of EU law to the Court of Justice and did not finally determine the substantive appeal.
2. Court of Appeal: In [2008] EWCA Civ 1448, [2009] ICR 593, the court allowed the appellant’s appeal on the time-limit issue but directed the Employment Tribunal to dismiss the substantive claim.
3. Employment Appeal Tribunal: The Department’s appeal succeeded on the ground that the claim was out of time.
4. Employment Tribunal: The Department’s initial objections to the claim were unsuccessful.