Part-Time Judges' Pensions - ECJ Reference

[Thanks to Claire Darwin of Matrix Chambers for providing this case summary]

The Supreme Court has unanimously referred the appeal of Mr O'Brien QC, a former fee-paid part-time Judge who is seeking retrospective admission to the Judicial Pension scheme, to the Court of Justice of the European Union.

O'Brien and others argue that the specific exclusion of part-time judges paid a daily fee from the protection of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 is incompatible with the Part-Time Workers Framework Directive (97/81/EC), and that the 2000 Regulations have not properly implemented the Directive into UK law.

The Directive leaves Member States free to define who is a worker in accordance with national law and practice, provided that the definitions respect the content of the pan-European Framework Agreement on part-time work.

The Supreme Court has referred the following questions to the Court of Justice:

(1) Is it for national law to determine whether or not judges as a whole are workers within the meaning of the Framework Agreement, or is there a Community norm by which this matter must be determined?

(2) If judges as a whole are workers within the Framework Agreement, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?

Lord Walker, delivering the judgment of the court, observed that judicial office "partakes of most of the characteristics of employment". This suggests that the Supreme Court is of the view that judges generally are workers within the 2000 Regulations; however the court has not expressed a concluded view on this issue.

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