MoJ told to deliver fight plan in Supreme Court battle over judicial pensions

The Ministry of Justice (MoJ) must devise a successful objective justification defence if it is to defeat a discrimination claim being pursued against it by a part-time judge, the Supreme Court has said.

In a preliminary ruling delivered by the Supreme Court earlier this week the court said that the MoJ must justify the difference between a fee-paid part-time judge and a full-time judge if it is to challenge a long-running claim made by retired recorder Dermod O’Brien QC.

Employment lawyers said the case pitches the judiciary against the Government, with the MoJ trying to escape pensions obligations.

In March the Court of Justice in Luxembourg (CJEU) ruled that O’Brien was right in his claim that as a part-time judge he was entitled to a judicial pension on retirement pro-rata to the pension of full-time circuit judges.

In addition, the European court warned the UK court that the fact that judges are labelled as ‘judicial office holders’ rather than ‘employees’ is insufficient in itself to exclude them from protection against discrimination.

The Government, represented by Monckton Chambers’ Tim Ward QC, had argued that as an ‘office holder’ rather than a ‘worker’ O’Brien 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 (2 March 2012).

Following the the CJEU decision the matter was referred back to the domestic court. Lawyers said the ruling was not expected until after the summer break, but the court, wanting to move the long-running case along, released a preliminary decision setting out its directions.

O’Brien, it said, was a worker within the EU regulations, but an immediate remission to the Employment Tribunal for it to assess the discrimination point would only be given if the MoJ submits an arguable defence. “Remission will be appropriate only if there are significant disputed issues of fact to be determined,” the court said. A hearing has been scheduled for November to determine what issues could be argued (see here).

O’Brien’s case has caused some controversy at the bar, with the action not being supported by the Bar Council, financially or otherwise, a fact that has led some to withhold their voluntary subscriptions. The one-time head of 2 Temple Garden’s said the council had not supported his fight.

Writing in 2007 O’Brien stated: “Having dutifully paid my Bar Council subscription for over 40 years, I thought that when there was a genuine ‘trade union’ function for which I really needed the help of my professional body, the Bar Council would be there to assist me.

“I feel strongly that this litigation (whether by me or by another member of the bar equally prepared to raise his head above the parapet) should be supported by the Bar Council and not left to one or two individual barristers to pursue at their own expense and risk.” (see here )

The case has instead been funded by contributions by his peers at the bar, with O’Brien represented by Cloisters’ Robin Allen QC, who was instructed by Browne Jacobson partner Edward Benson.

The MoJ was represented by Monckton Chambers’ Tim Ward QC.

Case comment

Stewarts Law employment partner Arpita Dutt:

“Hot on the heels of lapdancers in Stringfellows being given employment rights by the Employment Appeal Tribunal, and some partners being found to be ‘workers’, the Supreme Court has given its preliminary ruling determining that O’Brien, a fee-paid, part-time judge was a part-time worker.

“However, this is not quite the end of the road as it will now be for the MoJ to justify the difference between a fee-paid part-time judge and a full-time judge.

“The ECJ has already commented that the MoJ cannot solely differentiate between the two on the basis that a recorder is paid on a daily basis and is able to practise as a barrister, nor can cost considerations alone justify the unequal treatment. Both carry out the same functions in the same courts and have the same relationship with the MoJ.

“It remains to be seen what other arguments the MoJ will deploy and what issues will need to go back to the Employment Tribunal to be determined. If any factual issues revert to the tribunal, the parties will need to be prepared for the long-haul and the prospect of further appeals – no doubt a strategy by the MoJ.

“In the meantime, I think the MoJ ought to start provisioning the pension pot for part-time judges.”