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The UK Government will be liable for the pensions of 8,000 part-time judges following a ruling in the Court of Justice in Luxembourg (CJEU) yesterday (1 March).
Tim Ward QC
Retired recorder Dermod O’Brien QC brought a claim against the Ministry of Justice (MoJ) arguing that he was entitled to a judicial pension on retirement pro-rata to the pension of full-time circuit judges.
O’Brien, who was represented by Cloisters’ Robin Allen QC instructed by Browne Jacobson partner Edward Benson, also contended that he was discriminated against because of the Government’s decision to remunerate judges with a “fee” rather than a “salary”.
The Government, represented by Monckton Chambers’ Tim Ward QC, responded that as an “office holder” rather than a “worker” he had no entitlement to a pension, despite the fact that part-time judges are entitled to other worker’s rights such as maternity and sick pay.
In July 2010, the case was referred by the Supreme Court to the CJEU after it ruled that although all judges hold an ’office’, their relationship with the MoJ is similar to employment as they are expected to work during defined time periods and are not free agents in the same way as the self-employed.
The country’s most senior court asked whether it is open to domestic law to determine which employees are considered as workers for the purposes of the Part-time Workers Directive or if this must be determined at European Union level.
In its ruling the CJEU found that while it was up to member states to define who is a worker for the purpose of the directive, and in particular, to determine whether judges fall within that concept, such a determination must not arbitrarily exclude judges from its protection.
In addition, the European court warned the UK court that the sole fact that judges are labelled as ’judicial office holders’ rather than ’employees’ is insufficient in itself to exclude them from protection against discrimination.
Cloisters barrister Rachel Chambers commented: “Importantly the court observed that the principle of the independence of the judiciary was not damaged by the fact that judges work under terms and conditions of service.
“The UK Government had argued that the special status of judges and the need to enshrine their independent judicial function meant they could not be regarded as under the control of an employer. However, the court did not find that the importance of this work was in any way diminished by categorising them as workers.”
The case will now be referred back to the Supreme Court for a final ruling.