O’Brien v Ministry of Justice – part-time judges as workers

by Laurie Anstis on July 9, 2012

[Update 6 February 2013: see this post for the final decision in the O’Brien case.]

According to a press notice posted on the Supreme Court website today, the Supreme Court have followed the heavy hint given by the Court of Justice of the European Union and decided that a part-time judge can be a worker.

This stems from a claim by a part-time judge to be entitled to the same kind of pension that full-time judges get. The first question to be decided was whether a judge can, in principle, count as a worker so as to claim the benefit of the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. According to the report, the Supreme Court have decided that a judge can count as a worker.

That is not the end of the matter, though, because part-time workers can still be denied comparable benefits to full-time workers if the “employer” can show that denying the part-timers comparable benefits is “objectively justified”.

The press notice goes on to say:

“On the issue of objective justification the Court has not directed an immediate remission to the Employment Tribunal. Remission will be appropriate only if there are significant disputed issues of fact to be determined. Directions have been given to the parties which are intended to enable that issue to be resolved and to make progress with the determination of the appeal. There will be a further hearing of the appeal on 21 November 2012 to determine what (if any) issues should be remitted to the Employment Tribunal and to decide any issues which are not remitted.”

It is notable that the press notice refers to part-time judges as being workers under the European law definition of worker, rather than explicitly under the British Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It is not clear if this is intended to be a deliberate distinction, or if the court is to say that the British regulations do not appropriately reflect European law. [Update 10 July 2012: The British regulations contain a specific exemption for part-time judges so it appears that this is intended as a deliberate distinction.] A full judgment is awaited “at a later date”, [update 15 August 2012: there is still no full judgment available but I understand that the only remaining matters in the case are the question of objective justification and remedy].

Even if there is objective justification for not providing part-time judges with pensions, this ruling could still leave the Ministry of Justice with a headache. If part-time judges are workers, then in principle they ought to be entitled to paid holiday under the Working Time Regulations. The administrative arrangements for this are going to be very difficult, given the varied hours many part-time judges work. Will the Ministry of Justice have to resort to some form of rolled-up holiday pay?

[Update 15 August 2012: the terms of service for a Recorder provide for an allowance for annual leave built into their pay – see para 40 here.]

[Note: technically this case dealt with “fee-paid” judges, who are paid a daily rate to sit as a judge. There are already some part-time salaried judges who get the same benefits as their full-time colleagues, but I’ve used the words “part-time” to describe the fee-paid judges, since this is often how they are described.]