by Laurie Anstis on February 6, 2013
The Supreme Court has today given judgment in the case of O’Brien v Ministry of Justice, on the question of whether fee-paid judges such as recorders can claim a pro-rata entitlement to the same benefits as salaried judges.
Fee-paid judges sit as judges for a few weeks a year, ususally also continuing with their own separate legal practice. Fee-paid judges are paid a set rate for each day they sit as a judge, but they do not receive the additional benefits that salaried judges receive, such as a pension.
Fee-paid judges were specifically excluded from the scope of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, but the O’Brien case has challenged whether that exclusion is compatible with the underlying European directive on which the Regulations are based.
The case has a long history, having previously been the subject of a reference to the European Court of Justice and, last summer, a ruling by the Supreme Court that fee-paid judges did in principle count as part-time workers under the European directive.
That left the question of whether the Ministry of Justice could show objective justification for not providing to fee-paid judges on a pro-rata basis the same benefits provided to salaried judges.
The Supreme Court have today ruled that there was no objective justification for the distinction, going so far as to say (para 71):
“The Ministry have struggled to explain what they are seeking to achieve by denying a pension to part-timers while granting one to full-timers.”
and, adopting the opinion of the Advocate-General at the European Court:
“the unequal treatment of different classes of employees must be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria.”
It followed that recorders (Mr O’Brien was a recorder) were entitled to a pro-rata pension on the same terms as their salaried equivalent, a circuit judge.
Although in principle this case only deals with the position of recorders, the Supreme Court expressly suggested at para 75 that the Ministry of Justice would be unlikely to be able to justify the different treatment of any other kind of fee-paid judge.